New Michigan Model Local Government Ethics Ordinance Is a Lemon

This week, Michigan Attorney General Mike Cox announced a "toolbox" for local governments to create local ethics policies. Local government ethics is already governed by state statutes, but local governments can apparently supplement these rules with local laws and ethics boards. The toolbox consists of a website, whose principal feature is a Model Ethics Ordinance, with forms, links to relevant state statutes, and a guide to the state's Open Meetings Act.

I give the Model Ethics Ordinance a C- overall, and a D- on administration. Its recommended administration consists of a toothless ethics board selected by the local government's chief executive with council approval. The board cannot initiate its own complaints and cannot give advisory opinions. It does not oversee ethics training (nothing is said about ethics training). And it only has three members, an inadvisably small number.

In short, the board is a passive, powerless, politicized, puny body that is not designed to do the two most important things in government ethics: advise and train.

There's also an "ethics ombudsperson," selected by the chief executive, whose only two stated roles are to recommend to the council that an advisory opinion be sought from the council's counsel, and to recommend improvements to the ethics code. I have to assume that whoever had the idea for an ethics ombudsperson compromised it away into nothing but a name.

The one alternative that this model ordinance provides is to have the governing body be the ethics board, and not to have an ethics ombudsperson at all. It all depends on whether the governing body wants the pretense of independent ethics enforcement, or not.

The ethics provisions are better, but still full of problems. This is the sort of poorly written code where there are exceptions to recusal (which are confusing) and a recusal disclosure provision (disclosure of the reasons for recusal), but no explicit requirement that officials recuse themselves in the first place.

There is a ban on gifts from prohibited sources, complicated by an open-ended (to local governments) aggregate dollar limitation as well as a separate daily limit, and by eight exceptions, including friends, family, and bequests (from prohibited sources who aren't family members?!).

Divulging confidential information that benefits no one is included, even though this is not a government ethics issue, and public resources can be used to benefit others, just not yourself.

There are various conflict provisions, some of which are better than others, and then it says that a state conflict of interest act "preempts all local regulations of such conduct." Say what?

The nepotism provision is limited, "personal interest" goes undefined, annual disclosure includes only financial interests in prohibited sources, with no mention of real estate ownership, gifts, or the like.

I would like to joke that this sort of guidance is the blind leading the blind, but I don't think the attorneys who put this together are blind. The AG, who is running for governor, wanted to do something, but nothing that would upset local officials he will want to support him.

Weak government ethics proposals seem to be a pattern in Michigan. I wrote recently about a weak Michigan House bill requiring local governments to set up ethics boards, which apparently never became law. And just last month I wrote about the very same AG's extremely weak financial and gift disclosure proposal.

If the AG really wants to help Michigan's local governments, he should provide a much stronger and better written model ordinance that emphasizes independent enforcement, ethics training, and advisory opinions. An ethics ombudsperson should provide ethics advice and training. An ethics board should have teeth and the ability to initiate investigations. And all provisions should provide clear guidance.

Robert Wechsler
Director of Research-Retired, City Ethics

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