A City Attorney Providing Ethics Advice in a Big City Is Indefensible

Anonymous

Tue, 12/18/2012 - 06:04

City Related

Update: December 19, 2012 (see below) 
 
I am always amazed at what contraptions people are willing to set up
to justify the participation of a city attorney in the ethics
program of a large city or county that has sufficient resources to
hire an ethics commission staff member or independent ethics
officer. I raise this issue because controversial ethics reforms are
being voted on today by Fort Worth's council, and one of them
includes making a city attorney's ethics advice an "absolute
defense," even though there is an <a href="http://fortworthtexas.gov/citysecretary/info/default.aspx?id=4942" target="”_blank”">Ethics
Review Committee</a> that currently has the authority to provide
ethics advice.

<a href="http://www.star-telegram.com/2012/12/16/4489072/ethics-code-ready-for-f…; target="”_blank”">A
Fort Worth Star-Telegram editorial on Sunday</a> defends the
council's reform on the grounds that an ethics complaint can still
be filed against an official who has been given ethics advice by the
city attorney. If the official uses the advice as an absolute
defense, the editorial notes, he waives his attorney-client
privilege. This allows the ethics commission to question the city
attorney, and the commission can decide that the advice was wrong,
"calling public attention to the problem." 
 
That sounds like an awfully complex and expensive way to deal with
faulty advice or to confirm good advice. The process is also based
on a few questionable assumptions. First, it assumes that someone is
actually going to file a complaint if she knows that the city
attorney provided advice and believes that, therefore, there will be no
finding of a violation. Second, it assumes that the city attorney is
not going to run circles around the ethics commission members in
defense of her advice. Third, it assumes that the ethics commission
is actually going to override the city attorney's advice, even if
its members disagree with the advice. It's more likely that the
commission will allow the city attorney to save face, while making a
recommendation about a change in language or something. And four, it
assumes that, if the commission actually slaps the city attorney's
hand, the public will know which one was right and will care. 
 
Creating a problematic situation and hoping that wrong advice will
call the public's attention to the problem, after a tortuous
process, seems to me an ass-backwards way of constructing an ethics
program. In any event, the situation is not problematic just because the city attorney
may give bad advice. It's problematic because even when the city
attorney gives good advice, it will look like he's protecting
officials he works for. An ethics commission or ethics officer
doesn't work with or for government officials. Therefore, their independent advice
will be accepted by the public. 
 
As I said in <a href="http://www.cityethics.org/content/very-problematic-fort-worth-ethics-re…; target="”_blank”">a
recent blog post</a>, and at length in <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Loc…; target="”_blank”">a
section of my free book</a> Local Government Ethics Programs, city
attorneys should not be involved in an ethics program in any way.
Fort Worth's mayor defends the city attorney's role primarily to
save money. Fort Worth is the 15th largest city in the U.S. Here's a list of who provides ethics advice in the other large cities in the U.S. 
 
NYC - ethics commission (EC) staff 
Los Angeles - EC staff 
Chicago - EC staff 
Houston - city attorney 
Philadelphia - EC staff 
Phoenix - city attorney 
San Antonio - city attorney 
San Diego - EC staff 
Dallas - city attorney 
San Jose - state EC 
Jacksonville - ethics officer 
Indianapolis - corporation counsel 
San Francisco - EC staff 
Austin - integrity officer 
Columbus - state EC 
Fort Worth 
Charlotte - city or county attorney 
Detroit - EC staff 
El Paso - EC 
Memphis - ethics officer 
Boston - state EC 
Seattle - EC staff 
Denver - EC staff 
Baltimore - ethics officer 
Washington, DC - EC staff 
Nashville - EC 
Louisville - EC 
Milwaukee - EC 
 
Of these 27 cities, 21 of them provide for independent ethics advice
from the EC, its staff, an ethics officer, or the state EC staff. Of
the 6 cities where the city attorney provides advice, half of them
are in Texas. The other outliers are in Arizona, North Carolina, and
Indiana. 
 
It's also worth noting that the trend is opposite to Fort Worth's.
Washington, D.C. and Memphis recently shifted to EC staff and an
ethics officer, respectively. Dallas is looking into ethics reform.
Houston's reforms came primarily from the city attorney, and gave
his office a lot of power in the program (<a href="http://www.cityethics.org/content/city-attorney-wearing-too-many-ethics…; target="”_blank”">I
criticized the reforms severely in three blog posts</a>). 
 
Fort Worth is not doing the right thing. It's not going in the right direction. It is doing something radical and against the trend. And what it's doing has nothing to do with saving
money. It's all about power and control. Those under an ethics
program's jurisdiction should have no power and no control over the
program. This not only includes the city attorney; it applies
especially to the city attorney. No city attorney with integrity
would allow herself to provide ethics advice, unless she simply
didn't understand government ethics. In which case, what sort of
advice could she possibly provide? 
 
Update: December 19, 2012 
Not surprisingly, the council approved the ethics reforms. Now, of the 28 largest cities in the U.S., only seven (25%) of them have the city attorney as their ethics adviser. And four of those (57%) are in Texas. I think it's reasonable to call this wrongheaded role of the city attorney the Texas Approach. Let's hope that Dallas goes against the Texas grain and forces its neighboring city council to rethink the wrong direction it has taken. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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