Parties and the Selection of Ethics Board Members

One nearly untouchable aspect of government ethics is the role of parties.

This is less a problem in municipalities than at other levels of government, because most municipalities in the U.S. are nonpartisan, although parties still play a role. But many municipalities and, in some states, particularly in the Northeast, all municipalities are still partisan. And most counties are partisan, as well.

In many cases, partisanship and local government are hard to separate. That is, much that is done by local government officials is done as a member of a party rather than as an independent representative of the public.

But this is the prerogative of parties in our system, and there is little that ethics laws can do about this sort of conflict of interest. The reasoning behind this is that partisan competition is good for our government. But what happens when parties collude? How can that be good for the public interest?

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There is one way in which this problem directly affects local government ethics. That is the selection of ethics board members, usually by the local legislative body.

One common issue is the percentage of votes required to select an ethics board member. Many local governments will require a supermajority of 2/3 or 3/4, or even go all the way to requiring unanimity. In theory, if both parties are required to agree on particular ethics board candidates, then especially partisan individuals will be kept off.

But this assumes that parties are competitive, that they will protect the public interest in having nonpartisan individuals on an ethics board. However, it is common for parties to have what are known as gentlemen’s agreements. Without saying anything, they agree to accept the other parties’ nominees. You keep your hand off my back, and I’ll keep my hand off yours. The result of this, in terms of ethics board selections, can mean a nearly even division of partisan individuals, whose decisions will be viewed not as neutral or independent, but as partisan.

Most board votes on probable cause, not to mention on violations, require a supermajority, that is, members of both parties choosing to recognize a violation by a member of one of the parties. Who will believe this will ever happen with anything other than an open-and-shut case? Therefore, people with complaints are not likely to file them with such a board. Better to go straight to the press, many people will feel, or just let it go.

And people with ethics questions, especially members of the minority party, will be less likely to ask them of such a board, because they don’t believe in the fairness of the response. Asking for formal advice could, in fact, lead to a decision that would effectively make an ethical violation acceptable through a partisan interpretation of an ethics provision.

This is a case where perception is all-important. Ethics board members chosen via a gentlemen’s agreement will be seen as partisan. On other boards, when issues themselves are often partisan, this doesn’t matter. That’s politics. But ethics boards are supposed to be above partisanship. The appearance of partisanship can undermine use of the board and the respect given to the board's decisions.

But party collusion is not the worst result that can come from partisan selection of ethics board members. As with the Federal Election Commission at the present time, partisan disagreement can prevent the approval of new members, thereby preventing the ethics board from having the quorum necessary to give advice, hold hearings, or make decisions. This result can be accidental, or it can be done purposely, by politicians trying to protect themselves or their colleagues from a potential complaint.

But what alternative is there to partisan selection of ethics board members? Board members are either elected (a rarity with ethics board members, and not something I support) or appointed by the executive alone, by the executive with approval of the legislative body, or by the legislative body alone (the latter is usually regarded as best for ethics boards).

The City Ethics Model Code Project recommends appointment by the legislative body from candidates selected by the local League of Women Voters. Of course, selection could be done by another local non-partisan organization (in fact, in some towns, such as my own, the League leadership is more partisan than it should be) or representatives of several community organizations. The point is that partisan individuals would be less likely to be appointed, and the community’s perception would be that their selection was not politically motivated. Nor could the legislative body use the excuse of partisan disagreement to keep the ethics board from meeting.

After the initial appointments, another way to keep politics out of the process is to allow the ethics board members to select their own future members.

Robert Wechsler
Director of Research-Retired, City Ethics