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Part A: Ethics Provisions

§100. General Conflict of Interest Provisions.

1. Conflict of Interest.

An official or employee* may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal* or financial benefit*, not shared with a substantial segment of the city’s population, for any of the following persons or entities:

  1. himself or herself;
  2. a member of his or her household*, including a domestic partner* and his or her dependents, or the employer or business of any of these people;
  3. a sibling or step-sibling, step-child, parent or step-parent, niece or nephew, uncle or aunt, or grandparent or grandchild of either himself or herself, or of his or her spouse or domestic partner, or the employer or business of any of these people;
  4. an outside employer or business* of his or hers, or of his or her spouse or domestic partner, or someone who works for such outside employer or business;
  5. a customer* or client*;
  6. a person or entity from whom the official or employee* has received an election campaign contribution of more than $200 in the aggregate during the past election cycle (this amount includes contributions from a person’s immediate family or business as well as contributions from an entity’s owners, directors, or officers, as well as contributions to the official or employee*’s party town committee or non-candidate political committee);
  7. a substantial debtor or creditor of his or hers, or of his or her spouse or domestic partner; or
  8. a nongovernmental civic group, union, social, charitable, or religious organization of which he or she (or his or her spouse or domestic partner) is an officer or director.
  9. Comment: The central point of an ethics code is that city officials and employees should not prefer, over the public interest, their own interests or the interests of their family or business associates. There are other relationships that should be included in the above list, but cannot due to problems of defining them. These include romantic relationships short of domestic partnership, and close friends and associates.

    The general rule is: If it looks to others as if you might be giving someone special treatment, or if it would look that way to others if they knew about the relationship, then you should not act with respect to that person or entity, and instead recuse yourself under subsection 3 below. It is important to give city residents confidence that their officials and employees are treating everyone the same, even when you believe that you can be totally impartial.

    The most common way to define conflict of interest is as follows: No person subject to this code shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her public duties or employment. However, most government officials and employees do, on occasion, have conflicting interests. The important thing is not for them to prevent them, but rather to manage them honestly and responsibly, that is, to disclose them and to not act where there is such a conflict, no matter how impartial they feel they can be. What matters is not whether one can still act with integrity, but whether one will be perceived that way. It should be noted that even voting or making a decision against a friend or relative, in order not to seem partial, is not acting impartially, because the reason for the vote or decision is wrong: it might actually be better or more fair to vote or decide in favor of the friend.

    The one thing the common approach contains which does not appear in this model code is a prohibition of outside employment where there is not a conflict with a particular government interest, but instead with the general government interest in “the proper discharge of an employee or official’s duties” (a term that, by the way, is too vague to allow for enforcement). Outside employment does not only lead to conflicts of interest as defined in this code, but also interferes with doing one’s job by affecting the official or employee’s time, energy, and focus. Volunteers are expected to have other jobs, and it is not fair to prevent low-paid employees from having evening, weekend, or holiday jobs, but many cities have rules limiting the amount and type of outside employment. Please contribute outside employment provisions which you feel are just (or unjust), enforceable or unenforceable, and explain why. Such provisions should include procedural requirements, for example, applying for formal, written permission from one’s supervisor or department head (including disclosure of any officials, employees, or contractors involved), and the written acceptance of limitations on time and place of outside employment.

    There is also nothing in this model code about incompatible positions in government and parties, that is, holding legislative and administrative positions, for example, especially where one office has the power to remove or affect the other’s budget; or multiple administrative positions that stretch an official or employee too thin; or non-governmental positions that can have a great effect on government, for example, a department head who is an officer of a local political party, posing a question about his or her responsibility to all citizens vs. to party members, as well as putting him in a position of affecting who his boss will be, come the next election. Often such rules do not appear in ethics codes (often they appear in the city charter), but because they do involve conflicts of interest, they should at least be included by reference. Please say how your municipality deals with this problem, or how you think it should be dealt with.

    Another common conflict provision is as follows: No person subject to this code shall accept other employment which will either impair his or her independence of judgment as to his or her public duties or employment or require or induce him or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. What does it mean to have a job that impairs one’s independence of judgment, or a job that induces or requires one to disclose confidential information? And how could it be proven that particular employment could do this? Again, this sort of provision focuses on the conflict rather than on the improper management of the conflict. It is true that a developer should not be on a zoning board, nor should a contractor be in charge of a city’s purchases, at least in the relevant area. But in and of themselves, these are not violations of the public trust (so long as they recuse themselves when appropriate; but if that is very often, they are not fulfilling the obligations of their position); they are examples of seriously poor judgment on the individual’s part as well as on the part of those who nominated or appointed that individual. In addition, when a developer sits on a zoning board, it is a sign of a poor ethics environment, whose leaders have not spoken out against so severe a conflict. Cities may want to add a provision like the following to deal with this situation:

    The recusal provisions of §100(3) do not permit an official or employee to make use of recusal on a regular basis. If recusal occurs with such frequency as to give the appearance of impropriety, the official or employee is deemed to have violated the provisions of this code.

    Comment: An official or employee who is forced to recuse himself or herself on a regular basis should resign from his or her position. This should also be taken into account when a position is accepted.

    Another approach to conflicts of interest is to deem something a conflict only to the extent that an interest is not disclosed and the official or employee participates in the matter. This approach recognizes that ignoring a conflict is the principal problem. Such an approach can be combined with defining “conflict of interest” as doing or not doing much of what appears in §100 of this model code, as it is, for example, in Kings County (Seattle), Washington. This makes it clear that the central concept of a conflict of interest takes many forms, but it also limits conflict to particular instances, in effect, saying that all other conflicts are acceptable.

    New Haven, Connecticut enumerates several examples of conflicts of interest, as well as several exceptions. This is unusual, but if done thoughtfully and responsibly (being careful not to make the examples exclusive), it can provide clear guidance. The best place for such examples is, however, not in the code itself, but in explanatory guidelines on the city website or in pamphlet form. Here is what New Haven lists:

    Sec. 12 5/8-6. Exception to the conflict of interest provisions.

    The following situations shall not constitute a conflict of interest under section 209 of the Charter of the City of New Haven:

    1. Where a municipal employee or public official is employed by a person who enters into a contract with the City of New Haven, where said employee or public official is not directly involved in the procurement, preparation, or performance of such contract and whose remuneration is not, directly or indirectly, derived from said contract;
    2. If the municipal employee or public official is employed by any newspaper which publishes any municipal notice, resolution, ordinance or other proceeding where such publication is required or authorized by law;
    3. If the municipal employee or public official is employed by a public utility that furnishes public utility services to the City of New Haven when the rates or charges therefor are fixed or regulated by the public utilities control authority;
    4. If the municipal employee or public official is employed by a person or business which has a contract with the City of New Haven if the total consideration thereunder, when added to the aggregate amount of all consideration payable under contracts in which said employee or public official has an interest during a calendar year does not exceed five hundred dollars ($500.00).

    Sec. 12 5/8-7. Examples of an interest requiring disclosure.

    In accordance with article XXIII, section 210, of the Charter of the City of New Haven, interests requiring disclosure shall include, but not be limited to the following:

    1. Where a member of the immediate family of a member of a board, commission or task force is employed by the City of New Haven;
    2. Where a member of a board, commission or task force is employed by a nonmunicipal agency the funding of which is, in part or in its entirety, provided by funds authorized by the City of New Haven;
    3. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in the application of federal, state or local funding authorized by the City of New Haven;
    4. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is lobbying for specific legislation before the City of New Haven or when said organization is lobbying for specific State of Connecticut legislation which will result in the city receiving funding which is controlled by the city board, commission or task force of which the individual is a member;
    5. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in litigation against the City of New Haven;
    6. Where a member of a board, commission or task force accepts an offer of employment, whether paid or unpaid, by the City of New Haven or by a program recommended by said task force but has not yet resigned or retired from said board, commission or task force to accept said offer of employment;
    7. Where a municipal employee or public official has a financial or personal interest in a contract which was entered prior to the time of his nomination, appointment, election or employment to said position, so long as said contract is not renewed, amended or modified subsequent to his assuming public office;
    8. Where an employee or public official seeks or obtains employment with a person, company or corporation engaged in business with the City of New Haven but has not yet resigned his position assume said employment;
    9. Where an employee or public official applies for a city program or benefit over which he has control, influence or discretionary authority.

    2. Legislators Employed by City

    A member of the legislative body has a conflict of interest with respect to any labor contract to which he or she, or a member of his or her household*, may be a party, and with respect to an appropriation to any city department or agency through which he or she, or a member of his or her household, is employed.

    Comment: Some cities require that there be no incompatible or even multiple offices held by an individual, especially a council member, so that this problem could only arise with respect to members of the household. In towns and small cities, it is more difficult to make such requirements, because there are sometimes too few competent and interested people to go around. Also, recusal can take care of instances such as those described in this subsection. But explicit restrictions in this area, especially in large cities, can be valuable.

    3. Recusal

    1. An official or employee* must refrain from acting on or discussing, formally or informally, a matter before the city, if acting on the matter, or failing to act on the matter, may personally* or financially benefit* any of the persons or entities listed in subsection 1 of this section. Such an official or employee should join the public if the recusal occurs at a public meeting, or leave the room if it is not a public meeting.
    2. An official or employee must refrain from acting or discussing, formally or informally, a matter involving a person who appointed or recommended him or her for that position, if he or she is aware of such appointment or recommendation.
    3. If a board or agency member is requested to recuse himself or herself with respect to a matter, for the reason that he or she has a conflict of interest, by

      1. another member,
      2. a party to the current matter, or
      3. anyone else who may be affected by a decision relating to this matter, the member must decide whether to recuse himself or herself.

      If the member decides not to recuse himself or herself, the unchallenged members must consider any relevant evidence concerning such claimed conflict of interest, as defined in this code, and vote whether or not to allow the request and require that the member refrain from participating in the matter.

    4. Rule of Necessity: If recusal would leave a board with less than a quorum capable of acting, or if the official or employee* is the only person authorized by law to act, the official or employee* must disclose the nature and circumstances of the conflict to the Ethics Commission and ask for an advisory opinion pursuant to §104 and §209.

    Comment: “Acting on and discussing, formally or informally” means that the official should withdraw from any involvement with the matter, including conversations, appearances at meetings or portions of meetings concerned with the matter, and voting on the matter, except, of course, in a public referendum.

    Sometimes inaction benefits an official or his or her close associates – for example, when a code enforcement official fails to cite her brother for a zoning violation. That is why this subsection prohibits an official’s inaction, as well as action, in certain circumstances. In such an instance, the enforcement official should ask someone else to handle the matter.

    See §101 for provisions concerned with the disclosure of a conflict pursuant to this subsection. Because disclosure in this sort of situation occurs at the time a conflict becomes immediately relevant to an action or transaction to be taken by an official or employee, this is referred to as “transactional disclosure.”

    4. Gifts*

    1. An official or employee*, his or her spouse or domestic partner*, child or step-child, parent, or member of his or her household*, may not solicit nor accept anything of value from any person or entity that the official or employee knows, or has reason to believe, has received or sought a financial benefit*, directly or through a relationship with another person or entity, from the city within the previous three years, or intends to seek a financial benefit in the future. Nor may an official or employee solicit or accept anything of value from anyone, including but not limited to a gift*, loan, political contribution, award, or promise of future employment, based on an understanding that a vote, official action, or decision would be or had been influenced thereby.

      If in doubt, the official or employee should refrain from soliciting or refuse a gift, and should first inquire into the person or entity’s relationship with the city. [or: If the official or employee does not know whether a person or entity fits this description, he or she should inquire and, if it is discovered that the person or entity does fit this description, the gift should be returned (or its monetary value if it cannot be returned) and no further gifts accepted during the relevant period.]
    2. Gifts of property, money, or services given nominally to the city must be accepted by a resolution of the legislative body.

    Comment: The first sentence of subsection 4a is difficult, even if the language itself is not. Here it is broken down and explained:

    Who cannot accept or solicit gifts: An official or employee, his or her spouse or domestic partner*, child or step-child, parent, or member of his or her household*

    What a gift is: anything of value (see the definition at §113(5) and the exceptions in §102)

    Whom one cannot accept gifts from: any person or entity that has received or sought a financial benefit from the city within the previous three years, or that intends to seek a financial benefit in the future.

    Must the gift giver have directly received or sought a financial benefit from the city? No, it also counts if it sought a financial benefit through a relationship with someone or some entity

    What the official or employee must know about the gift giver’s relationship with the city: he or she must know the gift giver’s relationship with the city, or know enough that he or she has reason to believe that such a relationship may exist. If uncertain, the gift should be refused and questions asked.

    With respect to higher officials and department heads, and for officials and employees who deal directly with contractors and permitees, a city might choose to prevent them from receiving any gifts at all, other than campaign contributions and gifts from close relatives.

    Cities have taken a great variety of approaches to the gift problem. The approach here is to limit only gifts from people and entities that do business with or otherwise get financial benefits from the city, including permits, zoning approval, etc. Other common approaches are to limit the amount of gifts or to limit the type of gifts or the type of givers.

    There are two principal goals here: (1) to give clear guidance to officials, employees, and potential gift givers; and (2) to ensure city residents that their public servants are not accepting gifts from people and businesses who might be trying to influence them, whether or not that is a purpose for the gift (since no one can ever know the purpose).

    The choice of the above approach is intended to keep the process simple: if there is any question of the giver’s relationship with the city, do not accept the gift. If there is any reason to believe there is an improper motive behind the gift, do not accept it. There are exceptions to this rule below (at §102), but they are few and essentially allow just a lunch or two each year.

    Another approach to gift-giving is to require the annual disclosure of all gifts either by itself or in addition to prohibitions. This puts a great deal of pressure on the city’s informal oversight resources (citizen and media), since such gifts would be out of the jurisdiction of official boards. Since party organizations provide the most effective informal oversight in most communities, depending on disclosure will politicize this part of the city’s ethics process. Here is language for that approach:

    Officials and employees must file with the Ethics Commission, on or before January 31, a list of all gifts received during the preceding calendar year by them or by their spouse or domestic partner*, child or step-child, parent, or member of their household, to the extent that the aggregate amount of gifts received from an individual or entity (including gifts from all employees, partners, or investors) during the year is $50 or greater. Information to be disclosed is as follows:

    1. the date the gift was received and who received it;
    2. a description of the gift;
    3. the fair market value of the gift;
    4. the name, address and employer of the person who provided the gift;
    5. the name of any organization or individual represented by the person or on whose behalf the person was acting in providing the gift.

    Please provide language for alternative approaches, and provide arguments for and against approaches, as well as instances where certain approaches have worked or not worked, in terms of providing guidance as well as limiting questionable gift-giving.

    5. Special Consideration

    An official or employee* may not grant or receive, directly or indirectly, any special consideration, treatment, or advantage beyond what is generally available to city residents.

    Comment: See the exception in the second sentence of subsection 6 below, which also applies here.

    Some cities use the language of misuse of office (or of the “prestige” of office) here. I think it is unnecessary, but here is the IMLA Model Code version:

    No public servants shall use or attempt to use their official positions improperly to unreasonably request, grant, or obtain in any manner any unlawful or unwarranted privileges, advantages, benefits or exemptions for themselves, or others, and no public servants shall use, or attempt to use, their positions to avoid the consequences of illegal acts for any person; nothing in this provision shall be construed to prohibit or discourage any public servant from performing any official duty or action zealously and enthusiastically.

    6. Representation

    An official or employee* may not represent any other person or entity before the city, nor in any matter not before the city, but against the interests of the city. However, it is acceptable for elected officials to represent constituents without compensation in matters of public advocacy.

    Comment: The second sentence of this subsection recognizes that officials are elected to serve their constituents. Thus, for example, when a resident complains to a council member that the public works department blocks the resident’s driveway with snow, a council or board member must be able to pursue that complaint with the proper city authorities.

    Some cities go into more detail and cover more people in their limitations on representation. Such provisions include the representation by business associates of officials and employees, and acting as an expert witness before the official or employee’s board or agency.

    7. Appearances*

    An official or employee* may not appear* before any city department, agency, board or commission, except on his or her own behalf or on behalf of the city. Every time an official or employee appears before the meeting of any municipal body, or when he or she writes a letter to the editor or other publicly distributed writing, he or she is required to disclose before speaking or clearly on the writing whether he or she is appearing in an official capacity or as a private citizen. If the speech or writing is in response to criticism or other communication directed at or regarding his or her official role, the official or employee may respond only in his or her official role.

    Comment: Subsections 6 and 7 appear to overlap, because one who represents another usually makes an appearance. However, it is much more clear when an “appearance” has been made than when there is a “representation” relationship, so including both makes it more clear what conduct is being prohibited. Also, subsection 6 includes representation of private interests outside of the city’s own boards and departments, when it is against the interests of the city, usually but not exclusively when the city is a party to business or a proceeding. And subsection 7 deals with appearances where the official is representing himself or herself, but it is not clear which hat the official is wearing.

    Again, the general rule is that if others see your relationship with a person or entity as “representation,” then you should not do it, because it would be perceived as a conflict with your principal role of representing the city. Similarly, if your appearance at a meeting or in writing does not appear to be in the city’s interest, you should not appear.

    Why are officials and employees restricted from appearing before boards or agencies other than their own? Because restricting only appearances before your own board or agency would, for example, allow a code-enforcement official or the city attorney to represent private clients before the city planning board, because those officials are not members of that board. It would be very difficult to list every possible instance where an appearance before other boards and agencies would be inappropriate. When there is no such conflict, an official or employee should obtain a waiver from the Ethics Commission pursuant to §213.

    Some municipalities may go beyond actual representation, and include assistance or legal assistance, with an exclusion for representation or assistance in the performance of the official or employee’s official duties.

    For volunteers, towns might want to limit restrictions on representation and appearances to their own board or commission, especially those on boards where the opportunity for conflict elsewhere is very small, such as the library board. A list of boards where this exception applies could be added to a subsection 8 that read:

    8. Volunteer members of the following boards and commissions may represent persons and entities before, or appear before, any town department, agency, board, or commission other than their own.

    8. Confidential Information

    An official or employee*, a former official or employee, a contractor* or a consultant* may not disclose any confidential information obtained formally or informally as part of his or her work for the city or due to his or her position with the city, or use any such confidential information to further his or her own or any other person or entity’s personal* or financial interests*.

    Comment: Some cities will want to define “confidential information” more exactly. Here is possible definition language, based on the IMLA Model Code:

    “Confidential information” means information obtained in the course of holding public office or employment, or as a contractor to the city, which is not available to members of the public and which the official or employee* is not authorized to disclose, except to designated individuals or bodies, including written and non-written information. When such information is also available through channels open to the public, officials and employees* are not prohibited from disclosing the availability of those channels.

    The IMLA Model Code states explicitly, in its confidential information provision, that an ethics commission is, effectively, considered a designated body.

    9. Political Solicitation

    An official, employee, or municipal candidate may not knowingly request, or authorize anyone else to request, that any subordinate* or potential future subordinate participate in an election campaign or make a political contribution. Nor may he or she engage in any political activity while on duty for the city, with the use of city funds, supplies, vehicles, or facilities, or during any period of time during which he or she is normally expected to perform services for the city, for which compensation is paid.

    Comment: Political solicitation of subordinates by an official fosters the appearance,

    if not the reality, of coercion. The word “knowingly” here means that neither an official nor a campaign committee is required to cull the names of municipal officials from voter registration lists it mails to. However, a targeted mailing to municipal officials is prohibited.

    Similarly, candidates are barred from soliciting from appointed officials and employees who may fear reprisal, such as being fired, if they refuse to aid the candidate’s campaign, even if they do not currently work under that candidate.

    Note that this code does not restrict voluntary political contributions or political activity by any official or employee.

    Some municipalities may wish to add a bar on soliciting from persons or entities that have sought or received a financial benefit from the municipality within the previous twenty-four months.

    10. Patronage

    No official or employee* may promise an appointment or the use of his or her influence to obtain an appointment to any position as a reward for any political activity or contribution.

    Comment: As has been shown so skillfully in Chicago, patronage involves both promises of jobs in return for political activity, and the threat of losing jobs in return for political activity, so that patronage continues on forever. Even the Shakman Decree of 1983 did not put an end to the Chicago patronage system: it just went underground. It was twenty years before the new version, based on fraud, was taken on.

    Most ethics codes do not include patronage provisions, although many do prohibit asking subordinates to participate (however, this can occur without implicit requests or threats). Patronage involves the most basic conflict of interest in government: the conflict between holding on to power and acting in the public interest. A city government based on patronage cannot have a truly ethical environment, because most of its officials and employees are there on the basis of a quid pro quo/special consideration relationship, which is inconsistent with ethics.

    I would like to hear how various cities have dealt with or ignored patronage as an ethics issue.

    11. Revolving Door

    1. For a period of one year after the termination of his or her city service or employment, an official or employee* may not appear* or practice before any city department, agency, board or commission, except on his or her own behalf, or on behalf of the city if serving on a volunteer basis. For this same period, an official or employee* may not receive compensation for working on, or having associates working on, any matter before any city department, agency, board or commission. With respect to particular matters on which the official or employee personally worked while in city service or employment, this bar is permanent. The foregoing also applies, during the same periods of time, to any individual who is a partner, associate, or member of a person or entity with which the former official or employee* has a financial interest.
    2. A former official or employee* may not accept employment with a party to a contract with the city, within a year after the contract was signed, when he or she participated substantially in the negotiation or award of the contract and the contract obliged the city to pay at least $50,000. Nor may an elected or appointed official accept any appointment or election by the body of which he or she is or was a member, to any position which carries with it any financial benefit or remuneration, until the expiration of one year after termination of his or her membership in or on such body.
    3. Excluded from these restrictions are officials and employees* who performed only ministerial acts* while working for the city.

    Comment: If this bar creates a particular hardship for, say, a lawyer working on his own, the Ethics Commission may grant a waiver under §213.

    “Personally worked” means the official actually worked on the matter, not that he or she supervised a department that worked on the matter.

    Some municipalities may prefer a time limit greater than a year, but they should consider that the longer the bar, the more difficult it might be to hire qualified officials or find qualified candidates for office.

    Allowing former officials to immediately work for the city as consultants would allow the official to continue to act in the city’s interest, but such an exception would allow for sweetheart deals between the city and former officials, who normally have the edge in competing with vendors lacking their municipal contacts. Therefore, according to this subsection, a former official could consult to the city only on a volunteer basis.

    This code seems to restrict former officials more than current officials. However, former officials are subject only to the revolving door and confidential information provisions, while current officials are subject to the entire panoply of restrictions in this code.

    Another approach to the revolving door deals with the act of discussing or accepting employment while the official or employee* is still serving the city. The problem with this approach is that it requires proof of a quid pro quo, which is difficult, and ignores the appearance of impropriety that accompanies the revolving door. Here is typical language for this approach:

    It is a violation of this code to discuss or accept an offer of future employment with any person doing or seeking to do business with the city if the official or employee* knows or has reason to believe that the offer of employment was or is intended, in whole or in part, directly or indirectly, as compensation or reward for an act or failure to act during the course of city employment or to influence city action.

    The other side of the revolving door may also be dealt with in language like the following:

    It is a violation of this code for an official or employee* to, within one year of entering city employment or service, award a contract or participate in an action benefitting a person that formerly employed him or her.

    12. Misuse of City Property and Reimbursements

    An official or employee* may not use, or permit others to use, any property owned by the city for profit or personal convenience or benefit*, except (a) when available to the public generally, or to a class of residents, on the same terms and conditions, (b) when permitted by policies approved by the city’s legislative body, or (c) when, in the conduct of official business, used in a minor way for personal convenience. This applies not only to objects such as cars and trucks, but also to travel and other expense reimbursements, which may not be requested for nor spent on anything but official business.

    Comment: The IMLA Model Code takes this further by requiring care in the use of city property, so that there is no waste. This is an essential element of government ethics, but it is a difficult thing to put into law. People – especially opposition partiesoften paint other people’s actions as wasteful and negligent. The duty to use city property and resources with care belongs in the aspirational section of an ethics code, or it invites frivolous complaints, making it almost impossible to reject any complaint as frivolous.

    13. Nepotism

    1. Unless he or she obtains a waiver pursuant to §213, no official or employee* may appoint or hire his or her spouse or domestic partner*, child or step-child, sibling or step-sibling, parent, or member of his or her household* for any type of employment, including by contract (unless competitively bid pursuant to §103), with the city.
    2. No official or employee* may supervise or be in a direct line of supervision over his or her spouse or domestic partner*, child or step-child, sibling or step-sibling, parent, or member of his or her household*. If an official or employee* comes into a direct line of supervision over one of these persons, he or she will have six months to come into compliance or to obtain a waiver.

    14. Transactions with Subordinates

    No official or employee* may engage in a financial transaction, including the giving or receiving of loans or monetary contributions, including charitable contributions, with a subordinate* or person or business over which, in the official or employee’s* official duties and responsibilities, he or she exercises supervisory responsibility, unless (a) the financial transaction is in the normal course of a regular commercial business or occupation, or (b) the financial transaction involves a charitable event or fundraising activity which is the subject of general sponsorship by a state or municipal agency through official action by a governing body or the highest official of state or municipal government.

    Comment: Exception (b) allows for United Way campaigns and the like, but officials should be careful not to abuse this exception by getting pet charities approved by the mayor or city manager. Too often, charities are as much about the official as elections are, and even good causes should not be aided through coercion.

    Some cities might also want to except situations where the subordinate or business offers or initiates the financial transaction, but this exception can be abused in instances where a subordinate or business acted under pressure and does not feel in a position to anger a supervisor or someone responsible for handing out contracts.

    Some cities might also want to broaden the range of relations that constitute nepotism to include, say, aunts and uncles, nephews and nieces, and direct in-laws.

    15. Fees and Honorariums

    No official or employee* may accept a fee or honorarium for an article, for an appearance or speech, or for participation at an event, in his or her official capacity. However, he or she may receive payment or reimbursement for necessary expenses related to any such activity.

    16. Endorsements

    No official or employee* in his or her official capacity may publicly endorse products or services. However, this does not prohibit an official or employee from answering inquiries by other governmental officials, consumer organizations, or product information services regarding products or services.

    17. Consultants*

    A consultant* may not represent a person or entity other than the city in any matter, transaction, action, or proceeding in which the consultant participated personally and substantially as a consultant to the city. Nor may a consultant represent a person or entity in any matter, transaction, action, or proceeding against the interest of the city.

    Comment: Other rules that apply expressly to consultants* are §100(8) (Confidential Information), §100(21) (Honesty in Application for Positions), and §101(2) (Transactional Disclosure). Also see the comments to §100(11), the revolving door provision.

    Many codes also include language such as: A consultant may not accept other employment that will either impair the consultant’s independence of judgment with respect to the consultant’s official duties for the city, or that will require or induce the consultant to disclose confidential information pursuant to subsection 8 of this section. The same problem appears as in the comments to §100(1) above: how does one know or prove that employment will impair someone’s judgment or induce someone to disclose confidential information? It is enough that consultants are prevented from representing parties against the city or in matters the city hired them to deal with, and that they be included in the confidential information provision, §100(8).

    18. Complicity with or Knowledge of Others’ Violations

    No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code. If an official or employee* suspects that someone has violated this code, he or she is required to report it to the relevant individual, either the employee’s supervisor, the board on which the official sits or before which the official or employee* is appearing* or will soon appear, or the Ethics Commission if the violation is past or if it is not immediately relevant to a decision, to discussion, or to actions or transactions. Anyone who reports a violation in good faith will be protected by the provisions of §112.

    Comment: This subsection seems to turn all city officials and employees into stool pigeons. But, in fact, a principal reason why ethics programs are ineffective is that officials and employees feel they can get away with unethical conduct because no one will turn them in. Instead of having a culture based on ethics, their city has a culture based on loyalty. People in such a city ignore conflicts of interest, because they feel protected. There are two reasons for this: (i) no one wants to be a tattle-tale and (ii) everyone is afraid to be a tattle-tale, because doing so might threaten their jobs, lead to harassment and failure to advance, or undermine their relations with people in power.

    This subsection, along with the whistle-blower protection in §112, allows the people who know most what is going on in city government – city employees – to safely foster an ethical environment by preventing action in the public interest from being against their self-interest. The inclusion of this provision makes it clear to all officials and employees that government ethics is a group activity, that unethical behavior is less an individual problem than an organizational problem.

    Such a provision appears in the IMLA Model Code; the comments to the IMLA provision state, in part, “Even if a community ultimately decides not to impose any duty [to report violations], it would be better off for having debated the issue.”

    Whether or not anonymous reports would be accepted is another area for debate. Creating a hotline for reports of violation (anonymously or not) makes it easier for city employees and others to fulfill their duty to report violations. As long as the ethics commission can file its own complaint in such an instance, there is the protection for respondents that the ethics commission must feel satisfied, after a preliminary investigation, in the truth of the report. People’s experiences with such hotlines, good and bad, would be very helpful, as would information about debates about the duty to report and about hotlines and anonymous reporting of violations.

    Back to tattling, which is rarely defended in a rational way. Not tattling is something very important in childhood, where it helps maintain solidarity of children against adults. But for adults there is not a group to maintain solidarity against (hopefully not the city’s residents, to whom officials have a fiduciary duty) and, therefore, this sort of unquestioning loyalty is inappropriate. The best thing to do, before reporting, is to try to prevent unethical conduct before it occurs, to directly recommend, for example, that someone recuse himself or herself or seek advice from the ethics commission. But it is important that officials and employees know that unethical conduct will not be protected by the silence of fear or misplaced loyalty.

    The first sentence of this subsection, on complicity and inducement, is equally important. Under most ethics codes, a private citizen or company that induces a municipal official to violate ethics laws runs no risk of penalty. For example, hoping to keep a city’s business, a bank might give a personal loan to the city treasurer at a below-market interest rate. If this loan is discovered, the official might lose his or her job as a result; however, the bank will lose nothing and, more important, knowing this, it is more likely to offer the loan. Since the goal of this code is to prevent conflicts between the official’s interests and the public interest, it is important that the code also make it less likely that officials are tempted into these conflicts. Please share your experiences with provisions such as this, including instances where suits have been brought, arguing that ethics commissions have no jurisdiction over anyone other than public servants.

    19. Falsely Impugning Reputation

    An official or employee* may not falsely impugn the reputation of a city resident. If an official or employee* believes his or her accusation to be true, and then learns that it was false, even in part, he or she should apologize in the same forum the accusations were made. A failure to so apologize within a reasonable period of time after learning of the falseness of the accusations will create the presumption that the conduct was fully intentional.

    Comment: A common way for officials to intimidate residents who speak out and to prevent others from similarly speaking out is to use their positions of respect to falsely attack people who lack such positions, and thereby destroy their reputation and the legitimacy of their arguments, so that opposition from that individual and others will lessen. This form of misuse of office is central to undermining free debate as well as citizen oversight of executive and legislative actions.

    20. Meeting Attendance

    All members of boards and commissions are expected to attend and be prepared for meetings. It is a violation of this code to miss or come unprepared to more than a third of a board or commission’s meetings in a twelve-month period.

    Comment: If a member must miss or come unprepared for more than a small number of meetings, he or she should resign, whether or not his or her reasons are good ones. One can always ask to return to a position when one’s health or schedule have improved.

    21. Honesty in Applications for Positions

    No person seeking to become an official or employee,* consultant* or contractor may make any false statement, submit any false document, or knowingly withhold information about wrongdoing in connection with employment by or service for the city.

    Additionial Comment to §100: Some codes, including the IMLA Code, make it an ethical duty to comply with laws, including criminal laws, discrimination and sexual harassment laws, and lobbying laws. The chronic violation of more minor laws and rules is also sometimes cited.

    It is a difficult question whether to involve an ethics commission with every violation of law. Criminal and other undesirable activity by public servants certainly undermines the public trust in municipal government. But is the ethics process the right place to deal with such matters, or are they better dealt with by supervisors or, in the case of elected officials, by voters? The duty to comply with laws is not included here because, as long as the violation of other laws is made public, criminal and other proceedings should deal with them as well as the ethics process. However, if the violation is somehow hidden from the public, it might be appropriate for an ethics commission to make the violation public. Has anyone seen language to this effect?

    I believe that cities should consider special ethical guidelines and rules for city attorneys. This is a complicated area, where it is sometimes not clear what it means to represent the city (the mayor, the council, the public interest in such things as truth, openness, ane fair process). I feel that guidelines are important not only for attorneys, who often do not recognize the special conflicts they face, but also to protect the public interest, which is harmed by city attorneys who ignore conflicts in the name of representing their client. Who their client is in each sort of instance needs to be clarified. Attorney conflicts of interest are covered by their state’s disciplinary rules, but (i) these rules are enforced by lawyers rather than city residents; and (ii) these rules do not deal with the special conflicts that city attorneys are faced with. I would like to see a discussion about it, including recommended provisions to deal with the problems practitioners, both lawyers and non-lawyers, have witnessed.

Draft Model Municipal Ethics Code

CLICK HERE: Full text of the Model Ethics Code