EC Member Conflicts, Anonymous Complaints, and the Relocation of an Airport
Here's a mind-twister of a situation, from St. Marys City (GA; pop
17,000).
According to <a href="http://www.jacksonville.com/news/georgia/2009-08-26/story/st_marys_city…; target="”_blank”">an
article on jacksonville.com</a>, four members of the city council wrote
the state attorney general asking for a ruling on whether a fifth
council member violated state law by refusing to disqualify himself
from voting on the
proposed relocation of the St. Marys Airport (he owns a business there).<br>
<br>
Since the council members' letter was signed on a date the council did
not meet (possibly a violation of the state open meetings act), two
anonymous complaints were filed with the city's <a href="http://www.co.saint-marys.md.us/ethics/" target="”_blank”">ethics
commission</a> regarding the letter. It appears that the city's EC
deals with transparency issues, an unusual situation.<br>
<br>
<b>EC Member Conflicts</b><br>
Since each EC member was appointed by a council member, four of them
recused themselves from dealing with the complaint, so no quorum could
be reached to consider it. Because this requirement is in the ethics
code, <a href="http://www.cityethics.org/mc/full#TOC34" target="”_blank”">the Rule of Necessity</a>,
which overrides the requirement to recuse when it would mean no quorum,
does not apply.<br>
<br>
<b>Anonymous Complaints</b><br>
Instead of discussing the problem of having council members appoint
people who are likely to rule on complaints against council
members, leading to EC conflicts, the EC and the council took up the issue of
anonymous complaints. Did
this have anything to do with the fact that the two anonymous complaints
had been filed against council members?<br>
<br>
According to page 53 of <a href="http://www.ci.st-marys.ga.us/council/8.24.09%20City%20Council%20Packet…; target="”_blank”">the
council's August 24 packet</a>, the EC argued that anonymous complaints
do not allow for a full
investigation and make it difficult to fairly conduct hearings.
This is patently false. Complainants often play little or no role in
investigations or hearings. A good complaint does not require anything
more from a complainant. If the complaint is inadequate, it may be
dismissed. The anonymity of an adequate complaint poses no problem for
an EC.<br>
<br>
One council member also argued that "anonymous complaints could lead to
frivolous, unfounded accusations
against public officials. He said [prohibiting anonymous complaints]
also gives council members the
chance to directly confront anyone filing a complaint." Frivolous
complaints should be quickly dismissed as frivolous. This will only
make the accused official look better, assuming the process is public;
if the ethics process is not public, then a frivolous complaint will
harm no one.<br>
<br>
As for confronting a complainant, this would provide council members
with a
right that accused criminals don't even have. Anonymous tips often lead
to arrests, but the criminal has no right to confront the tipper if
there is other evidence sufficient to prosecute.<br>
<br>
It is important for an EC to be able to receive anonymous complaints
and tips, because many people in the know are reasonably afraid of
retribution, even if there is a whistle-blower provision protecting
them.<br>
<br>
<b>EC Member Recusal Provision</b><br>
The other change to the ethics code recommended by the EC is to strike
a provision that requires an EC member to recuse himself or herself
from a matter filed against the council member who appointed him or
her. The EC's explanation, on page 55 of <a href="http://www.ci.st-marys.ga.us/council/8.24.09%20City%20Council%20Packet…; target="”_blank”">the
council packet</a>, is that this presupposes that an EC member "would
act in a less than ethical manner and disregards personal integrity."<br>
<br>
This statement shows a lack of understanding of basic government ethics
concepts. Having an apparent conflict says absolutely nothing about the
ethics or integrity of anyone. If this statement actually comes from
the city's EC members, as it states in the council packet, the EC needs
some serious ethics training.<br>
<br>
Better would be the addition of the Rule of Necessity to the recusal provision,
so that where four or more council members are respondents, the matter
can still be dealt with by the EC. Best, however, would be to have EC members
nominated by civic organizations, so that there are fewer EC member conflicts in the first place.<br>
<br>
The council apparently accepted the amendments on a first reading. Its members seem to
need some ethics training, too.<br>
<br>
<b>All Roads Lead to the Airport</b><br>
Remember the airport from the first paragraph. It disappeared in this
mind-twister of a situation, but <a href="http://jacksonville.com/news/georgia/2009-07-07/story/st_marys_ethics_b…; target="”_blank”">according
to one EC member</a>, the EC is a "pawn" in an ongoing dispute between
city officials over relocating the airport. It's worth recalling
that what looks like a confusing (and in this case confused) debate about ethics provisions is often about something altogether different.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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