Officials' Personal Opinions and the Separation of Aspirational and Enforceable Ethics Provisions

Many local government ethics codes have a provision that, when officials publicly give personal opinions rather than the government's position, requires them to clearly state that they are not representing the local government. Here's the one from the ethics code in Santa Clarita (CA) where, according to an article yesterday in the Santa Clarita Valley Signal, the provision has become an issue.

12. Advocacy. Covered persons shall represent the official policies or positions of the City Council, board, commission, or committee to the best of their ability. When presenting their individual opinions and positions, covered persons shall explicitly state they do not represent their body or the City of Santa Clarita, nor will they allow the inference that they do.

Enforcing the Advocacy Provision
That's pretty clear. But when a council member spoke at a rally against illegal immigration, with language such as "one flag, one language," and did not state that he was not representing the city, the city attorney switched the provision around.

The city attorney is quoted as saying: "He did not say he was speaking on behalf of the council or speaking in an official capacity, so I don't think he has violated any policy."

One big problem is that the Santa Clarita ethics code, passed in 2008, has no formal enforcement mechanism. Here's the enforcement language:

Any persons who believe that a City official, employee, or volunteer has violated this Code of Ethics and Conduct shall report the allegation to the proper agency.

According to the Signal, the city attorney would be charged with investigating a complaint about the council member's conduct. But he has already shown that he can't even read the language correctly. He also referred to the First Amendment in the council member's defense, but he doesn't appear to understand how the First Amendment is involved here.

Normally, ethics rules require recusal when an official's interests conflict. But due to the First Amendment, no recusal is required with respect to personal opinions, nor is an official prevented from giving his personal opinion. Only disclosure is required, and disclosure does not in any way limit an official's right to state his personal views.

If quoted correctly, the city attorney has shown that he is either too biased (he works for the council) or too incompetent to enforce Santa Clarita's ethics code.

Aspirational and Enforceable Ethics Provisions
In any event, much of the ethics code is not really enforceable. Take the first provision:

Covered persons will be honest with fellow officials, the public and others. Covered persons shall be prepared to make unpopular decisions when the public’s interest requires it. Additionally, covered persons shall take responsibility for their actions...

This is a very nice aspirational provision, but it does not belong with provisions that are intended for enforcement. Aspirational and enforceable provisions should be clearly separated in an ethics code, and the enforceable provisions should be accompanied by independent ethics enforcement.

It's time for Santa Clarita to choose what sort of ethics code it wants, and whether it really wants its city attorney to enforce the code after what has happened in this matter.

Robert Wechsler
Director of Research-Retired, City Ethics

---