Basing Ethics Decisions on Unenforceable Code Provisions Undermines Trust in the Ethics Process
<a href="http://www.cityethics.org/content/stamford-ethics-controversy-involving…; target="”_blank”">I
recently wrote about a situation</a> in Stamford, CT in which probable
cause was found based on a policy declaration rather than an
enforceable ethics provision. That situation appeared to involve a
misunderstanding, with a unanimous ethics commission finding probable
cause.<br>
<br>
According to <a href="http://newstranscript.gmnews.com/news/2010-04-28/Front_Page/Ethics_pane…; target="”_blank”">an
article in the <i>News Transcript</i></a>, the Marlboro, NJ ethics board split
4-2 in its finding of probable cause based on three paragraphs in <a href="http://www.marlboro-nj.gov/EthicsCode_final2007.pdf" target="”_blank”">the ethics
code</a>'s Findings section, which precedes its Purpose and Authority
section, neither of which contain enforceable provisions:<ul>
II. Findings.<br>
The Marlboro Township Ethics Board finds and declares that:<br>
A. Public office and employment are a public trust.<br>
B. The vitality and stability of representative democracy depend upon
the public’s confidence in the integrity of its elected and appointed
representatives. ...<br>
D. Governments have the duty both to provide their citizens with
standards by which they may determine whether public duties are being
faithfully performed and to apprise their officers and employees of the
behavior which is expected of them while conducting their public duties.</ul>
The conduct involved a zoning board member's nasty e-mail to someone he
believed to be the manager of a website spreading false rumors during
election season last year. The website manager distributed the e-mail
to certain individuals, who brought it to the attention of the public.<br>
<br>
The individual who filed the complaint said that he "believed that [the
member's] tone and comments in the email could lead zoning board
applicants whose application had been denied to file suit and claim
their application was denied due to [the member's] prejudices."<br>
<br>
One ethics board member is quoted as saying, "We should be discussing
whether or not this email, which we now have in our possession, in some
way disqualifies Mr. Schlaflin from service on the zoning board. That
should be the only issue.” Another member agreed.<br>
<br>
According to <a href="http://newstranscript.gmnews.com/news/2010-03-10/Front_Page/Ethics_boar…; target="”_blank”">another
<i>News Transcript</i> article</a>, the ethics board's attorney "said that if
the alleged violator’s actions could affect his capabilities to perform
his duties on a public body, then the board could retain jurisdiction
of the matter."<br>
<br>
A third ethics board member "pointed to a section of the
township’s code regarding public trust and said he believes Schlaflin’s
action was in violation of that portion of the code." Public trust is
mentioned only in the Findings section, and there is nothing in the
ethics code about individuals' capability to perform their duties.<br>
<br>
Two ethics board members voted against taking jurisdiction over the
matter. They said that "the email in question was never meant for
public viewing and was therefore a private matter unrelated to
Schlaflin’s responsibilities on the zoning board. Salman said that
while Schlaflin’s email may have been filled with language the board
members would condemn, it was not the board’s job to be the moral
police."<br>
<br>
The Marlboro ethics code is a very standard ethics code. It covers the
basic topics, such as conflicts of interest, gifts, representation, and
post-employment, and has nothing to say about anything external to an
official's government responsibilities.<br>
<br>
To go beyond the clear limits of an ethics commission's jurisdiction,
especially when members have clearly pointed out why the commission
does not and should not have jurisdiction, makes its decisions look
political, opening up the entire ethics process to question and
undermining trust in the government. This is especially true since the
complaint was filed by the president of one of the township's party
organizations.<br>
<br>
According to <a href="http://newstranscript.gmnews.com/news/2010-10-13/Front_Page/Resident_ap…; target="”_blank”">a
<i>News Transcript</i> article yesterday</a>, the zoning board member has
appealed the ethics board's decision that he violated the ethics code.
The article contains accusations that further open up the ethics process to question.<br>
<br>
The zoning board member said that the board held meetings "at which the matter was discussed
without notification to him as the defendant that such a discussion
would take place." He also said that the board "deliberated on the
matter behind closed doors and then came back into public session after
they had made their decision in the case."<br>
<br>
<a href="http://www.state.nj.us/dca/lgs/ethics/pdfs/l_g_e_l_chap_35.pdf" target="”_blank”">The
state procedures for local government ethics</a> provide for
confidentiality and executive sessions only in the investigation stage of an ethics proceeding.<br>
<br>
The ethics board should reconsider its decision, make it clear that
complaints can be filed only on the basis of enforceable ethics
provisions (and state this clearly on <a href="http://www.marlboro-nj.gov/ETHICS-BOARD_Complaint_Form2007.pdf" target="”_blank”">its
complaint form</a>) and, if what the respondent says is true, clarify
its procedures so that respondents will be given notice of all meetings
relevant to their matter and that no meetings will be closed after the
investigation has been completed. The state procedures should also be
clarified, so that it is clear which meetings must be open; referring
only to those that must be closed is clearly insufficient.<br>
<br>
Finally, if the article was correct in describing what the ethics
board's attorney said, the ethics board should be allowed to retain
counsel with more understanding of government ethics, or require that
its counsel be sufficiently trained.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---