Ethics Commissions Should Stick to Their Area of Jurisdiction and Should Stay Out of Politics

A recent decision of the Wilton, NY ethics board (attached; see below) raises important issues regarding the selection of ethics commission members, their withdrawal from participation when they have a conflict, and the way an ethics commission handles allegations that are not covered by the ethics code.

Allegations That Do Not Constitute Violations
The only allegation in the complaint that was covered by the town's ethics code was one involving matters left off an official's annual financial disclosure form. The other allegations involved personal conduct, which the ethics board recognized was not covered by the ethics code. And yet, the board investigated and commented on these allegations in its decision.

When someone alleges facts that, even if true, would not constitute a violation of an ethics code, those allegations should be dismissed without any investigation or comment. By not doing this, the Wilton ethics board wasted its time and the town's resources (an attorney was hired) investigating irrelevant allegations. In addition, it made comments it had no reason to make, such as that the official's conduct "was not befitting a representative of the Town of Wilton" and that he should be a role model. Making such statements are outside the ethics board's jurisdiction, they personalize the ethics program and escalate tensions, and they confuse the public about the role of the ethics board and what government ethics is.

When you combine the ethics board's inappropriate conduct with the ethics board selection process, the ethics board made itself a lightning rod for political tensions, exactly what an ethics board should never do.

The Selection of EC Members
The ethics board's members are selected by the town board; the ethics board chair is selected by the town supervisor. According to a letter to the editor of the Saratogian, one of the five ethics board members had, when the complaint was filed, been recently defeated in a town board race by the respondent, and the ethics board chair was vice-chair of a town party committee and was being challenged by a supporter of the respondent.

Political EC Members
Because conflicts of interest are based on relationships, politically involved citizens, who have personal and political relationships with town officials, have no place on ethics commissions. This is one of the many reasons EC members should not be selected by politicians.

Handling EC Member Conflicts
Conflicts based on politics are the last thing EC members should have. But when they do have conflicts, they should act as a role model in responsibly handling them.

Wilton's ethics board handled them very poorly. Both politically involved members participated and voted. In the ethics board's letter to the town board sent along with its decision in this matter, it acknowledged the respondent's allegation of bias on the part of the two ethics board members. Its response is that the facts upon which the allegation was based were "given their due weight in the deliberation process." The ethics board "finds" that neither of the members "exhibited any bias in their review or determination of this matter, and that the facts do not require their recusal from this matter."

These statements make it appear that the ethics board has a limited understanding of conflicts of interest. There is a clear appearance of impropriety when an ethics board member participates in a matter involving an official he has recently run against. This fact cannot be given "due weight," and it is completely irrelevant whether the individual "exhibited any bias." Conflicts cannot be given due weight, nor can an individual's apparently unbiased participation in a matter where he has a conflict somehow change the fact that he should not have participated at all.

The Consequences
One result of this conduct by the Wilton ethics board was a letter to the editor with the headline "Ethics board members in Wilton should resign," and a first paragraph that included the words, "This wasn’t an investigation. It was a political hatchet job."

Apparently, this letter was written by the respondent's campaign manager, but no one should be able to write such a letter about an ethics commission. This letter is the result of a selection process, the selection of politically involved individuals, the failure to withdraw from participation, and investigating and then commenting on matters beyond the board's jurisdiction, all steps done unanimously and apparently with approval of counsel.

Recommendations
The Wilton ethics board needs to take a long, hard, self-critical look at its actions. It should consider sending the town board an amended decision that is consistent with its jurisdiction, and it should certainly make a public statement clarifying its role, acknowledging that it should not have investigated or commented on matters outside its jurisdiction. And finally, it should recommend that its members be selected by non-political civic groups, not by the town board. An apology might also be in order.

But even more important, other ethics commissions should learn from this. They should learn how important it is to be and to appear independent and non-political. They should learn how to deal with allegations outside their jurisdiction. They should recognize that, when it comes to their members, they should bend over backwards to deal responsibly with their apparent conflicts. They should get special training in government ethics. And they should hire counsel with expertise in government ethics. Most attorneys do not understand government ethics.

Robert Wechsler
Director of Research-Retired, City Ethics

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