A Miscellany

Waiving the Privilege and The Extent of Withdrawal
According to an article in yesterday's Business Journal Daily, the Ohio Ethics Commission, which has jurisdiction over local government ethics, is investigating the Western Reserve Port Authority's lease of property at the local airport near Youngstown. Two controversies have arisen from this investigation that should be of interest to government ethics professionals.

The most interesting is something one rarely sees:  a vote by a body to waive the attorney-client privilege. The port authority's board split 4-4, with the apparent subject of the investigation voting against waiver. The board member who appears to be most serious about getting to the bottom of what happened is quoted as saying, "It gives us a black eye by saying there might be pieces we're going to keep out of the investigation."

The authority attorney's response was just what one would expect from an attorney who doesn't understand the difference between the obligations of a private client and a government client:  he characterized the motion to waive privilege as "a bit of a slippery slope."

It also goes against the title and emphasis of the article, "Airport Board Cooperates in Land Deal Probe."

The second controversy involves the handling of the apparent conflict at the center of the investigation. A board member is the vice-president of the listing agent for the property that was leased. Therefore, he apparently benefitted financially from the transaction. Therefore, he should have withdrawn from the matter.

The authority attorney is quoted as saying, "It's clear that Scott Lewis did not vote on anything dealing with the cargo building." The board member quoted above responded, "The voting isn't the issue. The issue is whether he took part in the negotiations and whether or not he disclosed that he was going to gain financially."

And then he adds, showing far more understanding of the concept of withdrawal than the attorney does, "If I'm a Realtor, I'm on this board and that lease is going to be part of the deal, I [would] recuse myself from anything. I wouldn't even be in the goddamn room when it was being talked about and that's what should have been done."

EC Independence Is More Than What's on Paper
According to an article in Wednesday's Georgetown Transcript, the New Castle County (DE) ethics commission is in a battle regarding who can cut its budget and how. The administration made cuts in the budget, and now wants to restore the cuts. But the EC doesn't want the administration involved in any way. Its vice-chair is quoted as saying, “The commission believes these changes are beyond the authority of the executive. The commission believes its budget is a matter between council and the commission and that interference by the administration interferes with the commission’s independence.”

The EC's attorney pointed out that the EC had made its own cuts, as all agencies had to take a hit, but that it would be the only one to determine where the cuts were made. Independence is not only what it says on paper, but how things are done, and the attitude and recognition of all involved. The EC appears to have taught a lesson in independent government ethics to the entire county government.

A Highly Desirable Position
According to an article in Wednesday's Miami Herald, it appears that heading the Miami-Dade County Commission on Ethics and Public Trust is one popular job. The current director, Robert Meyers, is leaving this year after twelve years in the position. The 39 applicants include:

a longtime chief of the local public corruption unit
a former real and daytime TV show judge
a former state Medicaid fraud investigator and corruption investigator
a former Miami assistant city attorney and ethics commissioner
a Miami-Dade assistant public defender
a former assistant attorney general
and two longtime Miami-Dade prosecutors, who recently retired

Do judges and criminal lawyers make the best government ethics professionals? Of course, it depends on the individual, but considering that training, advice, and disclosure are far more important to government ethics than enforcement, it would be surprising. On the other hand, many ethics staff members are attorneys, and a majority of the Miami-Dade staff consists of enforcement personnel.

The short list will be determined next week, so keep tuned.

Robert Wechsler
Director of Research-Retired, City Ethics

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