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 <a href="http://www.houstontx.gov/legal/about.html" target="”_blank”">Houston's
city
attorney</a> by a member of the city council.<br>
<br>
According to <a href="http://www.chron.com/disp/story.mpl/metropolitan/7640886.html" target="”_blank”">an
article
in the Houston <i>Chronicle</i> last week</a>, 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.<br>
<br>
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 <a href="http://www.houstontx.gov/legal/oig.html" target="”_blank”">the office of inspector
general</a> 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.<br>
<br>
I wrote at length about the
ethics reforms in two blog posts this January (<a href="http://www.cityethics.org/content/houston-ethics-reform-i-ethics-commis…; target="”_blank”">1</a>
<a href="http://www.cityethics.org/content/houston-ethics-reform-ii-ethics-provi…; target="”_blank”">2</a>).
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
<a href="http://www.chron.com/disp/story.mpl/headline/metro/7647441.html" target="”_blank”">Rick
Casey
in his Houston <i>Chronicle</i> column this Sunday</a>, to make the city
attorney the city's chief ethics officer (however, this term or an
equivalent does not appear in <a href="http://www.cityethics.org/sites/cityethics.org/files/COH%20Ordinance%20…; target="”_blank”">the
ethics
ordinance</a>).<br>
<br>
According to<a href="http://www.chron.com/disp/story.mpl/metropolitan/7605487.html" target="”_blank”">
a Houston <i>Chronicle</i> article last month</a>, 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 href="http://www.scribd.com/fullscreen/57468272?access_key=key-1czxpw4bfowmz1…; target="”_blank”">a recent IG report</a> 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.<br>
<br>
Finally, according to <a href="http://www.houstontx.gov/boards/boards.pdf" target="”_blank”">the only thing I
could find about the ethics commission</a> (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.<br>
<br>
Assuming that what the council member's counsel said is true, the city
attorney wears the following hats:<ul>
Chief drafter of the city's new ethics program<br>
Chief ethics officer, providing advice to council members and others on
ethics issues<br>
Supervisor of counsel to, and provider of staff to, the ethics commission<br>
Administrative supervisor of the inspector general's office<br>
Adviser to department directors regarding employee discipline based on IG report recommendations<br>
Criminal enforcer of certain ethics provisions, a role handled by the law dept's chief prosecutor<br>
Appointer of special prosecutor when he deems this appropriate<br>
Adviser to the council's internal ethics review panel<br>
Director of ethics training</ul>
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.<br>
<br>
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..."<br>
<br>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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