An Ethics Code in a Charter

Anonymous

Thu, 03/07/2013 - 03:53

Ethics Reform

In this, the third blog post on the Colorado ethics commission
situation, I would like to look at the problems that can arise from
placing an ethics code in a constitutional document, either a
charter or, as in the Colorado case, the state constitution. 
 
It is an unfortunate fact that, in many jurisdictions, legislators
are so opposed to the creation of an effective government ethics
program that the task of ethics reform can be accomplished only via
charter revision or a referendum. In other instances, ethics
reformers recognize that, if an ethics code is not placed in a
charter, the legislative body will scrape away at it, undermining
the program's independence, jurisdiction, authority, and resources. 
 
But success in ethics reform through citizen or charter revision
initiative, as occurred in Colorado in 2006, can make it extremely
difficult to fix the problems an ethics commission finds in the
code. Sometimes, problems can be solved through interpretations made
via rules and regulations, advisory opinions, and decisions in
ethics proceedings. Sometimes, there is room for legislation to
correct mistakes. But sometimes an ethics program is stuck with
poorly written language, and has to make the best of it, as the
Colorado ethics commission is doing right now, stuck as it is with a
<a href="http://www.cityethics.org/content/total-gift-bans-and-legal-defense-fun…; target="”_blank”">total
gift ban</a>, and the <a href="http://www.cityethics.org/content/when-ec-dependent" target="”_blank”">state
attorney general as its counsel and an insufficient budget</a>.

It is understandable to want to put as much as possible in a charter
or constitution, so that it is secure. But security has its price.
Therefore, the best way to go about constitutionalizing an ethics
code is to put only the most essential provisions in the charter,
leaving the rest in the hands of a task force that will draft a
conflicts of interest ordinance, so that its provisions can be fixed
as the ethics program matures. 
 
Below is a model ethics code for inclusion in a charter. The model
focuses on the ethics commission's independence and authority. It is
based on a draft I made for a member of the New Haven charter
revision commission earlier this year. It will appear in the second
edition of my book Local Government Ethics Programs, which City
Ethics will publish in the late spring or summer. 
 
 
 
<h2>Model Charter Ethics Code</h2>

<h4>Charter Section ___. Task Force.</h4> 
A. Ethics Task Force 
An Ethics Task Force (“Task Force”) will be created, whose sole
purpose is to draft a Conflicts of Interest Code for the City/County
of _________ (“Code”). The Task Force will present the Code to the
[legislative body] for consideration no later than at the first
[legislative body] meeting in June ____. If the [legislative body]
fails to adopt the Code within ninety days of its receipt of the
Code, the Code will be presented to the electors of__________ for
consideration at the November ____ general election. If approved by
the electors of _________ , the Code will become part of the
_________ Code of Ordinances, replacing the current Chapter ______.
The Code must be consistent with all provisions in Section ____ of
this Charter. 
 
B. Membership. 
The Task Force will be comprised of seven residents of _________ ,
to be selected by a committee of five community organizations to be
chosen by the president/chair of the [legislative body] from the
following list [samples only]: 
 
 _________ League of Women Voters 
 _________ Bar Association 
 _________ CPA Association 
 _________ Clergy Association 
 _________ Medical Association 
 _________ NAACP 
 President, Local University 
 Dean, Local Law School or Government Institute 
 
The selected Task Force members will be appointed by the Mayor/Executive. No
member of the Task Force may be, or have been within the three years
prior to appointment, a City/County official or employee, or a consultant
or contractor of the city/county; an officer in a political party or
political committee; a candidate or an active member of the campaign
of a candidate for any City/County office; or a city lobbyist. A Task Force
member or staff member may not make campaign contributions nor
participate in any way in the campaign of a candidate for any City/County office. The Task Force will be given a
budget sufficient to hire experts to advise it. 
 
C. Term and Vacancies. 
Task Force members will serve until the Code has either been adopted
by the [legislative body] or adopted or rejected by the electors of
_________ in a referendum. If a member fails to attend any three (3)
consecutive meetings of the Task Force, that member will be
considered to have vacated his or her seat, and the vacancy will be
filled by the process described in Subsection B. 
 
D. Meetings. 
The Task Force will hold its first meeting as soon as practicable
after its appointment. The Task Force will meet as needed and will
hold no fewer than eight (8) meetings. All meetings of the Task Force
must be held in public. All votes will be by majority of those
present. 
 
E. Chair and Vice-Chair. 
At the first meeting of the Task Force, the members will vote for a
temporary Chair and Vice-Chair. At its third meeting, the members
will vote for a Chair and Vice-Chair, who will serve for the
duration of the Task Force’s existence unless they are replaced by a Task Force vote. 
 
<h4>Charter Section ___. Conflicts of Interest Board</h4> 
A. Independence. 
(1) The _________ Conflicts of Interest Board (“the Board”) will be
independent, to assure that no interference or influence external to
the Board affects, or is seen to affect, the objectivity of the
Board. 
 
(2) Consistent with its budget, the Board will have the power to
employ its own personnel as deemed necessary for the efficient and
effective administration of the Board. 
 
(3) The Board’s seven members will be selected by the Conflicts of
Interest Board Selection Committee (“Selection Committee”). The
selection process of the Selection Committee and the Task Force will
be the same, and with the same or additional member limitations, as
described in Section ___(B) of this Charter, except that there will be two additional alternate members. Members of the Task
Force may become members of the Board. 
 
(4) The Board will have a guaranteed budget. 
 
B. Functions, Authority, and Powers. 
(1) The authority of the Board will extend over the following: 
 
 (a) All elected and appointed, paid or unpaid,
officials ("Officials") and employees ("Employees") of the City/County of
_________ and of all agencies and authorities established or
substantially funded by the City/County or whose boards are substantially
appointed by City/County officials (“the City/County”), former Officials and
Employees, and any candidate for City/County office; and 
 
 (b) All entities and persons that provide, or are
seeking to provide, goods or services to the City/County under contract for
compensation ("Providers"), as well as those that seek permits,
grants, or other special benefits from the City/County (“Permittees”). 
 
(2) The Board will have a monopoly on the provision of ethics
advice, providing formal and informal ethics advice to Officials,
Employees, Providers, Permittees, and Candidates, and informal
ethics advice to any citizen. 
 
(3) The Board will have a monopoly on enforcement of the Code,
making determinations on complaints filed by any citizen alleging a
violation of the Code. In addition, it may itself initiate
investigations and file complaints. A hotline will be instituted to
provide the Board with information about possible violations of the
Code. 
 
(4) The Board will provide mandatory ethics training to City/County
Officials, Employees, and Providers. 
 
(5) The Board will have an executive director, appointed by and
answerable only to the Board, who will provide training and ethics
advice, and counsel to the Board. The executive director will review
disclosures and assist with ethics proceedings. 
 
(6) All Officials, Employees, Providers, and Permittees will fully
cooperate with investigations conducted by the Board.

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