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North Carolina Legislature Is About to Pass a Nearly Worthless, and Possibly Dangerous, Local Government Ethics Law
Friday, July 17th, 2009
Robert Wechsler
In a blog post
yesterday, I noted that North Carolina was soon to require local
governments to pass ethics codes. I've now found out more about the
proposed law, and it is disappointing, to say the least.
States have taken a variety of approaches to local government ethics. Some have a state local government ethics law that is administered at the state level. Some have a state local government law that requires minimum provisions for local government ethics codes that are administered locally. Others just have a conflict of interest provision and, perhaps, a couple of others, without any local codes or enforcement mechanisms.
What's Good About the Law
North Carolina's proposed law, which has passed the house and is about to pass the senate, has two things going for it. One, it requires all local government governing body members, including school board members, to take at least two hours of ethics classes within twelve months of election or appointment. But the ethics classes will have nothing to do with the individual boards' ethics codes.
Two, it requires each local governing body to sit down and discuss what sort of ethics code it wants. This is a valuable exercise, if it is taken seriously.
The Law Itself
But it would be even more valuable if there were some concrete guidelines, including a list of possible provisions. The only guidelines -- or requirements, if you can call them that -- are unbelievably vague, for the most part worthless, and sometimes even dangerous. Here they are:
What's Wrong with the Law
Provision (1) goes without saying, which is one reason ethics codes don't usually say it. In addition, such a provision can cause problems. There are many laws that are way outside the jurisdiction and expertise of local governing boards. Or take a charter requirement that the council do X, but no one has done X for years, for good reason. Charters are full of such provisions. So citizen A, who supports the council minority, brings a complaint against the council majority for not following the charter provision. Is this an ethics issue, or a political issue? This sort of political issue, in various guises, happens all the time. These are three reasons why I do not support putting this provision in ethics codes.
(2) provides no guidelines. What does "independence" of a board member's office mean? Does it mean being impartial? Does it mean not being influenced by special interests? And "integrity" is a word that can take an enormous range of meanings. Does it include conflicts of interest, a term that only appears, almost magically, in the education section of the proposed law? Does it include telling the truth, not misusing one's office, etc.? How would this provision translate into a gift provision? Who knows. But it certainly does not require, or even suggest, a gift provision.
How does (3) differ from (2)? It certainly provides no clearer guidelines. And note that the use of the word "impropriety," usually used in an ethics context in the term "appearance of impropriety," does not refer to appearances. Appearances of impropriety are, apparently, okay.
Does any governing body really want to get into (4)? Do they really want to sit in judgment on whether their fellows are faithfully performing the duties of their office? Will this be the new term thrown back and forth in the internecine squabbles of local politics? I wouldn't touch this provision with a ten-foot pole.
(5) is great, but it's already covered by state law. It would be nice if each governing body would take a fresh look at transparency and open meetings laws, and decide whether they wanted more stringent requirements for their members. But will this really happen?
What Local Governing Bodies Will Likely Do
Local government boards do not want to create the wheel. If they are required to do something, most will want to just take some provisions and place them in a law. They'll be happy to accept (1) and (5), which add nothing. And then they'll include the vague language of (2)-(4), which no one can really argue with, and just forget about it. Except when their opponents use the vague language to open up cans of worms.
The Limits of the Law
There is nothing here about mayors or managers, local government employees, non-governing body members, contractors, or others. This is a very limited law, requiring self-enforcement (if any enforcement; it's not specifically mentioned) by governing bodies.
There is nothing here about independent ethics commissions or advisory opinions, nothing about disclosure or conflicts of interest or recusal, nothing about gifts, revolving doors, misuse of office or property, confidential information, etc. This law is not even window dressing; you can see right through it.
The League of Municipalities' Cans of Worms
It will come as no surprise what organization is behind this law: the North Carolina League of Municipalities. Here's what the League recently said about the law:
And of course the NCLM is first in the state law's list of organizations that can provide ethics education. But does the NCLM understand that, despite the fact that they have been successful in creating what might be the weakest state local government law in the country, they might be opening up some seriously ugly cans of worms? The state's local governments won't have real ethics codes. But the squabbles of governing boards can now take on the legitimacy of ethics arguments.
When a school board member pushes an unpopular cause, his fellows can point out that by missing the last two meetings, he has not faithfully performed the duties of his office and is therefore in violation of the school board ethics code. That'll shut him up! Words such as "integrity," "independence," and "impropriety" will become watchwords tossed around with renewed meaning, in fact, any meaning an official wants to give them.
What I Hope Will Happen
I hope that each local government governing body will ignore the language of this law and use it as an opportunity for true ethics reform, for an ethics code with disclosure and independent ethics administration that the town or city can be proud of. But this will happen no thanks to the state legislature or the NCLM.
Good News from Winston-Salem
While this law was making its way through the legislature, Winston-Salem was working on something more like a true ethics code, passed on June 15. It's a minimal code, but it does have the basic provisions and it does have training and an enforcement mechanism, with an ethics officer for opinions and investigations, but no ethics commission (the city manager and city council do the enforcement). I hope North Carolina's councils will look more to Winston-Salem than to the state law when they sit down to fulfill their ethics requirements.
Robert Wechsler
Director of Research-Retired, City Ethics
---
States have taken a variety of approaches to local government ethics. Some have a state local government ethics law that is administered at the state level. Some have a state local government law that requires minimum provisions for local government ethics codes that are administered locally. Others just have a conflict of interest provision and, perhaps, a couple of others, without any local codes or enforcement mechanisms.
What's Good About the Law
North Carolina's proposed law, which has passed the house and is about to pass the senate, has two things going for it. One, it requires all local government governing body members, including school board members, to take at least two hours of ethics classes within twelve months of election or appointment. But the ethics classes will have nothing to do with the individual boards' ethics codes.
Two, it requires each local governing body to sit down and discuss what sort of ethics code it wants. This is a valuable exercise, if it is taken seriously.
The Law Itself
But it would be even more valuable if there were some concrete guidelines, including a list of possible provisions. The only guidelines -- or requirements, if you can call them that -- are unbelievably vague, for the most part worthless, and sometimes even dangerous. Here they are:
The resolution or policy required by
subsection (a) of this section shall address at least all of the
following:
(1) The need to obey all applicable laws regarding official actions taken as a board member.
(2) The need to uphold the integrity and independence of the board member's office.
(3) The need to avoid impropriety in the exercise of the board member's official duties.
(4) The need to faithfully perform the duties of the office.
(5) The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.
(1) The need to obey all applicable laws regarding official actions taken as a board member.
(2) The need to uphold the integrity and independence of the board member's office.
(3) The need to avoid impropriety in the exercise of the board member's official duties.
(4) The need to faithfully perform the duties of the office.
(5) The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.
What's Wrong with the Law
Provision (1) goes without saying, which is one reason ethics codes don't usually say it. In addition, such a provision can cause problems. There are many laws that are way outside the jurisdiction and expertise of local governing boards. Or take a charter requirement that the council do X, but no one has done X for years, for good reason. Charters are full of such provisions. So citizen A, who supports the council minority, brings a complaint against the council majority for not following the charter provision. Is this an ethics issue, or a political issue? This sort of political issue, in various guises, happens all the time. These are three reasons why I do not support putting this provision in ethics codes.
(2) provides no guidelines. What does "independence" of a board member's office mean? Does it mean being impartial? Does it mean not being influenced by special interests? And "integrity" is a word that can take an enormous range of meanings. Does it include conflicts of interest, a term that only appears, almost magically, in the education section of the proposed law? Does it include telling the truth, not misusing one's office, etc.? How would this provision translate into a gift provision? Who knows. But it certainly does not require, or even suggest, a gift provision.
How does (3) differ from (2)? It certainly provides no clearer guidelines. And note that the use of the word "impropriety," usually used in an ethics context in the term "appearance of impropriety," does not refer to appearances. Appearances of impropriety are, apparently, okay.
Does any governing body really want to get into (4)? Do they really want to sit in judgment on whether their fellows are faithfully performing the duties of their office? Will this be the new term thrown back and forth in the internecine squabbles of local politics? I wouldn't touch this provision with a ten-foot pole.
(5) is great, but it's already covered by state law. It would be nice if each governing body would take a fresh look at transparency and open meetings laws, and decide whether they wanted more stringent requirements for their members. But will this really happen?
What Local Governing Bodies Will Likely Do
Local government boards do not want to create the wheel. If they are required to do something, most will want to just take some provisions and place them in a law. They'll be happy to accept (1) and (5), which add nothing. And then they'll include the vague language of (2)-(4), which no one can really argue with, and just forget about it. Except when their opponents use the vague language to open up cans of worms.
The Limits of the Law
There is nothing here about mayors or managers, local government employees, non-governing body members, contractors, or others. This is a very limited law, requiring self-enforcement (if any enforcement; it's not specifically mentioned) by governing bodies.
There is nothing here about independent ethics commissions or advisory opinions, nothing about disclosure or conflicts of interest or recusal, nothing about gifts, revolving doors, misuse of office or property, confidential information, etc. This law is not even window dressing; you can see right through it.
The League of Municipalities' Cans of Worms
It will come as no surprise what organization is behind this law: the North Carolina League of Municipalities. Here's what the League recently said about the law:
Our thanks to the sponsors for working with us on this bill. League supports in its current form. ...
And of course the NCLM is first in the state law's list of organizations that can provide ethics education. But does the NCLM understand that, despite the fact that they have been successful in creating what might be the weakest state local government law in the country, they might be opening up some seriously ugly cans of worms? The state's local governments won't have real ethics codes. But the squabbles of governing boards can now take on the legitimacy of ethics arguments.
When a school board member pushes an unpopular cause, his fellows can point out that by missing the last two meetings, he has not faithfully performed the duties of his office and is therefore in violation of the school board ethics code. That'll shut him up! Words such as "integrity," "independence," and "impropriety" will become watchwords tossed around with renewed meaning, in fact, any meaning an official wants to give them.
What I Hope Will Happen
I hope that each local government governing body will ignore the language of this law and use it as an opportunity for true ethics reform, for an ethics code with disclosure and independent ethics administration that the town or city can be proud of. But this will happen no thanks to the state legislature or the NCLM.
Good News from Winston-Salem
While this law was making its way through the legislature, Winston-Salem was working on something more like a true ethics code, passed on June 15. It's a minimal code, but it does have the basic provisions and it does have training and an enforcement mechanism, with an ethics officer for opinions and investigations, but no ethics commission (the city manager and city council do the enforcement). I hope North Carolina's councils will look more to Winston-Salem than to the state law when they sit down to fulfill their ethics requirements.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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