A City Attorney Wearing Too Many Ethics Hats

How many hats can a local government attorney wear when it comes to government ethics? This question arises out of a state bar grievance filed against Houston's city attorney by a member of the city council.

According to an article in the Houston Chronicle last week, the council member alleged that the city attorney violated legal ethics rules by providing legal advice to her before an inspector general investigation and then to the mayor during and after the investigation. The council member also alleged that the city attorney participated in a review process that he largely designed, and that he gave legal advice on a case in which he was a witness.

Although the city attorney was appointed only a little more than a year ago, he has been very active in reforming the city's ethics program, including the creation of the office of inspector general which, among other things, took over the investigative role of the city's ethics commission and is part of the city's legal department, overseen by the city attorney.

I wrote at length about the ethics reforms in two blog posts this January (1  2). Among the reforms was to make the city attorney responsible for criminal enforcement of certain ethics provisions, for ethics training in the city and, according to a statement by the city attorney cited by Rick Casey in his Houston Chronicle column this Sunday, to make the city attorney the city's chief ethics officer (however, this term or an equivalent does not appear in the ethics ordinance).

According to a Houston Chronicle article last month, an ethics complaint was filed with the council by one council member against the council member bringing the legal grievance, who was the subject of a recent IG report primarily regarding misuse of city resources for personal purposes (a report sent to the mayor via the city attorney). This complaint led to the creation of an internal review panel consisting of the mayor and two council members selected by the complainant and respondent, respectively. The city attorney is advising this panel.

Finally, according to the only thing I could find about the ethics commission (p. 33) on the Houston website, "it may request that the City Attorney provide legal advice or may request special outside counsel from City Council." The commission is listed as part of the city's legal department. The commission's secretary is a paralegal with the city's legal department.

Assuming that what the council member's counsel said is true, the city attorney wears the following hats:

Chief drafter of the city's new ethics program
Chief ethics officer, providing advice to council members and others on ethics issues
Supervisor of counsel to, and provider of staff to, the ethics commission
Administrative supervisor of the inspector general's office
Adviser to department directors regarding employee discipline based on IG report recommendations
Criminal enforcer of certain ethics provisions, a role handled by the law dept's chief prosecutor
Appointer of special prosecutor when he deems this appropriate
Adviser to the council's internal ethics review panel
Director of ethics training

My interest is not whether wearing all these hats would constitute a legal disciplinary violation. My interest is in how wearing all these hats affects the city's ethics process, especially the public's and officials' trust in the process.

In January, I wrote, "The city attorney will also handle criminal enforcement. Since the city attorney's office represents the very officials against whom ethics provisions will be enforced, the office will have a conflict of interest in many proceedings. ... Ethics commissions are supposed to be independent so that people can trust the ethics program to be fair and nonpolitical. If there is not much in the way of an ethics program, and enforcement is in the hands of elected officials and mayoral appointees, independence has little value. ... Rarely does a city attorney recognize that his office should have little or no role in an ethics program..."

This city attorney has up to nine roles, one of which includes advising people on both sides of an ethics matter. What is one to think about a mayoral appointee who recommended giving himself so many roles and setting up so many potential conflicts in a program that involves conflicts of interest?

A city attorney should have not nine, but at most two roles in this government ethics program: helping the council draft ethics provisions and advising the council on internal ethics reviews, which are not intended to be an independent process.

In order for an ethics commission's work to be considered above both politics and the influence of officials under its jurisdiction, it should have its own counsel and its own ethics adviser to provide independent ethics advice to officials. The inspector general should have its own counsel or share counsel with the ethics commission, and should not be part of a legal department over which it has jurisdiction. Criminal enforcement of ethics laws, if that is what is decided on (I oppose this), should be handled by someone who is not part of the city government, such as a district attorney. Ethics training should be overseen by the EC staff.

Whatever the council member was seeking to do by filing her grievance against the city attorney, the city should treat this as a wakeup call regarding the city attorney's multiple roles in the city's ethics program and, more generally, the ethics program's independence from elected and appointed officials over which it has jurisdiction. The council should not simply point a finger at the city attorney, but should also take itself completely out of the ethics process. The way for officials to gain and keep the public's trust through government ethics is not to control the ethics process, but to give it independence.

Robert Wechsler
Director of Research-Retired, City Ethics

---