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A Miscellany
Friday, July 24th, 2009
Robert Wechsler
Open Records Requests and
Ethics Proceedings
In an unusual twist on the confidentiality of ethics proceedings, counsel for the Colorado Springs mayor's former client, the person who gave rise to the mayor's apparent conflict of interest, has made an open records request for all documents related to the ethics proceeding against the mayor, according to an article in the Colorado Springs Gazette. Counsel for the complainant noted, “Is there any irony in the attorney for Marshall asking the city to turn the cards up when it seems that Mr. Marshall, in all his dealings, has preferred confidentiality commitments?" In fact, the complaint was filed to bring transparency to a secret deal (see my blog post on this).
I would think that if a proceeding is confidential, documents produced in the proceeding would also be confidential. But it is not city law that makes the proceeding confidential; it was the ethics commission's decision (see my blog post on this). Can an ethics commission, without support in the ethics law, override an open records law? I would guess not.
Shades of Ambiguity?
According to an article in the Dallas Morning News, a council member obtained an opinion from an assistant city attorney about the propriety of asking developers for money for a city development initiative. The assistant city attorney said that this could be done, so long as the funds were given directly to the city and coordinated through the city manager's office.
The council member has been accused of accepting bribes from developers, and is using this opinion as a defense, especially since in some cases he worked with the city manager's office. But if any of the funds went into the council member's pocket, the opinion hardly seems to protect him.
In addition, the council member showed the jury an ethics video that was viewed by council members. Counsel for the defense noted how complicated ethics was and how many "shades of ambiguity." "So someone needs a lawyer to navigate?" the defense attorney asked the assistant city attorney, who said, "Yes."
I don't see who needs a lawyer to tell him not to take money from developers with projects before their board. If a council member can't read the ethics code to this extent, he probably can't make determinations about any law.
Political Conflicts
According to an article on wreg.com, the Memphis council officially accepted the mayor's resignation as of July 30. One council member, as well as the mayor who isn't quite sure he's leaving now, said that the council couldn't do this, because its members have conflicts of interest. The council member said, "With at least three members of the council thinking of running for Mayor...and one of them ...will be Mayor pro tem, they shouldn't have voted. You can't vote on anything, because you're going to move from one position to another position. And that's going to be some new revenue for you."
This view would mean that any council member up for chair of the council (sometimes for mayor, if the council elects the mayor) would not be able to vote, because it would mean more money for him. Every conflict does not require recusal, and political conflicts such as these are nearly always excluded, even if there is a raise in pay due to obtaining a new political position. It is assumed in government ethics that one does not run for mayor or council chair for the money, and that when it comes to politics, no elected official can be expected to be impartial, whether or not he or she is running.
Pension Board Disclosure Requirement
Los Angeles candidates have to disclose their campaign contributions, but they don't have to report which boards or departments they do business with. Therefore, according to an article in the Los Angeles Times, the Fire and Police Pensions board approved a policy demanding quarterly statements that spell out the political donations made by companies that do business with the board as well as by their paid representatives, their employees, and their employees’ family members.
The board will also require the disclosure of all “placement agents” -- individuals and firms that promote a specific investment proposal -- as well as other intermediaries. This is a response to the kickbacks to placement agents in New York State and elsewhere.
Robert Wechsler
Director of Research-Retired, City Ethics
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In an unusual twist on the confidentiality of ethics proceedings, counsel for the Colorado Springs mayor's former client, the person who gave rise to the mayor's apparent conflict of interest, has made an open records request for all documents related to the ethics proceeding against the mayor, according to an article in the Colorado Springs Gazette. Counsel for the complainant noted, “Is there any irony in the attorney for Marshall asking the city to turn the cards up when it seems that Mr. Marshall, in all his dealings, has preferred confidentiality commitments?" In fact, the complaint was filed to bring transparency to a secret deal (see my blog post on this).
I would think that if a proceeding is confidential, documents produced in the proceeding would also be confidential. But it is not city law that makes the proceeding confidential; it was the ethics commission's decision (see my blog post on this). Can an ethics commission, without support in the ethics law, override an open records law? I would guess not.
Shades of Ambiguity?
According to an article in the Dallas Morning News, a council member obtained an opinion from an assistant city attorney about the propriety of asking developers for money for a city development initiative. The assistant city attorney said that this could be done, so long as the funds were given directly to the city and coordinated through the city manager's office.
The council member has been accused of accepting bribes from developers, and is using this opinion as a defense, especially since in some cases he worked with the city manager's office. But if any of the funds went into the council member's pocket, the opinion hardly seems to protect him.
In addition, the council member showed the jury an ethics video that was viewed by council members. Counsel for the defense noted how complicated ethics was and how many "shades of ambiguity." "So someone needs a lawyer to navigate?" the defense attorney asked the assistant city attorney, who said, "Yes."
I don't see who needs a lawyer to tell him not to take money from developers with projects before their board. If a council member can't read the ethics code to this extent, he probably can't make determinations about any law.
Political Conflicts
According to an article on wreg.com, the Memphis council officially accepted the mayor's resignation as of July 30. One council member, as well as the mayor who isn't quite sure he's leaving now, said that the council couldn't do this, because its members have conflicts of interest. The council member said, "With at least three members of the council thinking of running for Mayor...and one of them ...will be Mayor pro tem, they shouldn't have voted. You can't vote on anything, because you're going to move from one position to another position. And that's going to be some new revenue for you."
This view would mean that any council member up for chair of the council (sometimes for mayor, if the council elects the mayor) would not be able to vote, because it would mean more money for him. Every conflict does not require recusal, and political conflicts such as these are nearly always excluded, even if there is a raise in pay due to obtaining a new political position. It is assumed in government ethics that one does not run for mayor or council chair for the money, and that when it comes to politics, no elected official can be expected to be impartial, whether or not he or she is running.
Pension Board Disclosure Requirement
Los Angeles candidates have to disclose their campaign contributions, but they don't have to report which boards or departments they do business with. Therefore, according to an article in the Los Angeles Times, the Fire and Police Pensions board approved a policy demanding quarterly statements that spell out the political donations made by companies that do business with the board as well as by their paid representatives, their employees, and their employees’ family members.
The board will also require the disclosure of all “placement agents” -- individuals and firms that promote a specific investment proposal -- as well as other intermediaries. This is a response to the kickbacks to placement agents in New York State and elsewhere.
Robert Wechsler
Director of Research-Retired, City Ethics
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