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The Problems with EC Jurisdiction Over Charter Violations
Wednesday, October 16th, 2013
Robert Wechsler
It is unethical for a local official to violate a law, especially
the city or county charter. But such a violation is usually not a
government ethics violation, because it has nothing to do with conflicts
of interest. It may be a misuse of office, but it is not a misuse of office to benefit oneself, one's family, or one's business associates.
And yet some ethics codes contain a provision making a legal or charter violation an ethics violation. Here is one from Forest Park, GA, a city of just under 20,000, which has been the basis for the city's two ethics complaints in the last three years, according to an article in the Clayton News Daily:
There are numerous ways in which a city official can violate a charter. A violation may involve elections, the legislative process, the appointment of city officers and board members, or financial issues such as the budget, borrowing, and taxation. It may involve all sorts of legal and technical areas in which an ethics commission and its staff have no expertise.
Such a provision places an ethics commission in the role of refereeing personnel battles and legislative and executive branch turf battles (such as in the Forest Park cases), partisan battles over council votes and elections, financial disputes, and anything else that can go wrong or can be used as a political weapon. The words in the provision may be few, but they greatly multiply an ethics commission's jurisdiction and face the ethics commission with a wide range of difficult issues and partisan battles.
The questions that need to be asked are (1) Whose function is it to uphold charter provisions and other laws in these government-oriented areas? and (2) Is this the proper function of a commission that is otherwise responsible for conflicts of interest matters?
When a council member, a council staff member, or a high-level appointee is alleged to have violated a charter provision or other government-related law, the matter should be handled by the council. If an employee is alleged to have violated a charter provision, the matter may be handled by the city manager.
If charter language is not clear, only the council should be able to interpret it. If a charter provision proves to be problematic, the council can recommend that it be amended, and in most jurisdictions create a charter revision commission to deal with the problem. An ethics commission can do nothing but treat the problem as a respondent's personal problem (or, if it thinks outside the box, instead turn the matter over to the council, where it belongs).
It can be difficult for a council to handle these matters fairly and responsibly. An alternative is to give an ombud the authority to deal with these matters. Such an individual would be in a better position to deal with these matters, just as an ethics officer is in a better position than an ethics commission to deal with most government ethics matters.
Selecting an ethics commission to deal with charter violations reflects a misunderstanding of the word "ethics" in this context. Government ethics is not about any misconduct by government officials and employees. Some misconduct is better handled by the criminal justice system. Other misconduct is better handled by human resources, by supervisors, or by civil suits. Charter provision violations are better handled by a council or an ombud.
If a council does not deal responsibly with alleged charter violations, citizens should demand an ombud. It doesn't have to be a full-time position, but it should certainly be an independent position, selected by community organizations rather than elected officials or appointees.
Robert Wechsler
Director of Research-Retired, City Ethics
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And yet some ethics codes contain a provision making a legal or charter violation an ethics violation. Here is one from Forest Park, GA, a city of just under 20,000, which has been the basis for the city's two ethics complaints in the last three years, according to an article in the Clayton News Daily:
Section 2-2-44(t). No city official shall engage in any activity or transaction that is prohibited by law now existing or hereafter enacted which is applicable to him/her by virtue of being a city official.Both ethics complaints alleged that high-level elected officials ordered members of the executive branch to do something. The city charter prohibits this. Such acts are generally prohibited by charters in council-manager governments, such as Forest Park's.
There are numerous ways in which a city official can violate a charter. A violation may involve elections, the legislative process, the appointment of city officers and board members, or financial issues such as the budget, borrowing, and taxation. It may involve all sorts of legal and technical areas in which an ethics commission and its staff have no expertise.
Such a provision places an ethics commission in the role of refereeing personnel battles and legislative and executive branch turf battles (such as in the Forest Park cases), partisan battles over council votes and elections, financial disputes, and anything else that can go wrong or can be used as a political weapon. The words in the provision may be few, but they greatly multiply an ethics commission's jurisdiction and face the ethics commission with a wide range of difficult issues and partisan battles.
The questions that need to be asked are (1) Whose function is it to uphold charter provisions and other laws in these government-oriented areas? and (2) Is this the proper function of a commission that is otherwise responsible for conflicts of interest matters?
When a council member, a council staff member, or a high-level appointee is alleged to have violated a charter provision or other government-related law, the matter should be handled by the council. If an employee is alleged to have violated a charter provision, the matter may be handled by the city manager.
If charter language is not clear, only the council should be able to interpret it. If a charter provision proves to be problematic, the council can recommend that it be amended, and in most jurisdictions create a charter revision commission to deal with the problem. An ethics commission can do nothing but treat the problem as a respondent's personal problem (or, if it thinks outside the box, instead turn the matter over to the council, where it belongs).
It can be difficult for a council to handle these matters fairly and responsibly. An alternative is to give an ombud the authority to deal with these matters. Such an individual would be in a better position to deal with these matters, just as an ethics officer is in a better position than an ethics commission to deal with most government ethics matters.
Selecting an ethics commission to deal with charter violations reflects a misunderstanding of the word "ethics" in this context. Government ethics is not about any misconduct by government officials and employees. Some misconduct is better handled by the criminal justice system. Other misconduct is better handled by human resources, by supervisors, or by civil suits. Charter provision violations are better handled by a council or an ombud.
If a council does not deal responsibly with alleged charter violations, citizens should demand an ombud. It doesn't have to be a full-time position, but it should certainly be an independent position, selected by community organizations rather than elected officials or appointees.
Robert Wechsler
Director of Research-Retired, City Ethics
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