Ethics Reform Testimony in D.C. and Tallahassee

Anonymous

Mon, 01/14/2013 - 05:41

City Related

It would be really helpful if people could find recommendations for
ethics reform all in one place, but this rarely happens. Ethics task
forces and ethics commissions that ask for such recommendations from
good government groups, officials, and academics rarely make them
available to the public online. Collections of such recommendations
would be a useful resource both for those interested in government
ethics in the particular city or county, and for those elsewhere who
are considering ethics reform and looking for good ideas. 
 
Last Thursday, both the D.C. Board of Ethics and Accountability and
the Tallahassee Ethics Advisory Panel held their first public forums
seeking recommendations for ethics reform.

District of Columbia 
Hopefully, the D.C. ethics board will place the minutes of its
meeting on its website, as well as all the written testimony it
received. But there is no place on its website for meeting minutes,
so this is unlikely. 
 
Therefore, attached to this blog post (see below) are the testimony of (1) V.
David Zvenyach, general counsel to the city council; (2) Kathleen
Clark, former special counsel for ethics to the District’s attorney
general and a professor at Washington University in St. Louis; and
(3) me. According to <a href="http://washingtonexaminer.com/d.c.-ethics-board-considers-city-governme…; target="”_blank”">an
article in the Washington Examiner</a>, both Zvenyach and Clark
also appeared at the forum to give their testimony in person. I did
not. 
 
Also providing testimony in person were lobbyist
Rod Woodson, who according to the article asked the board to focus
on licensing and inspections, and anti-gambling activist Marie Drissell, who apparently felt that
officials' financial disclosures were not very useful. Others may,
like me, have provided their testimony in writing only. 
 
It's notable that all three of those whose written testimony is
attached ignored the ethics board's request for best practices
regarding ethics provisions and focused on the ethics program and
its processes. 
 
The council's attorney, Mr. Zvenyach, started with a valuable call
for the ethics board to take a proactive advisory role, especially
in areas where the rules are complex, but the situations are
predictable. Zvenyach gives as an example a determination of whether
a bona fide personal relationship exists between a government
employee and a prohibited source. He feels that, in such instances,
the ethics board "should not wait until it is asked. Instead, in
those cases, the Board should endeavor to provide proactive advisory
opinions and guidance." 
 
He says, "the Board should keep its finger on the pulse of emerging
issues within the District’s ethics ecosystem. By listening to 
employees and the public, anticipating common or emergent
situations, and tackling difficult but predictable ethical
dilemmas." 
 
I couldn't agree more. A proactive ethics commission can prevent far
more ethical misconduct than a passive ethics commission.
Proactivity often takes the form of providing advice that isn't
asked for regarding a particular situation that is being written
about in the news media and the blogosphere. It also takes the form
of providing general advisory opinions or advisory alerts when
multiple officials have sought advice regarding similar situations,
and providing specific guidance (in the form of information sheets
or FAQs) regarding situations that arise in certain areas such as
procurement, grants, development, transportation, and council slush
funds. See <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Gen…; target="”_blank”">the
section of my book</a> Local Government Ethics Programs on general
advisory opinions. 
 
Zvenyach's second recommendation is for the ethics board to create a
code of conduct that will cover all D.C. officials and employees.
This call to consolidate the District's many ethics laws, to provide
clear guidance, appears in all of the attached testimonies. 
 
Kathleen Clark's first recommendation is for the ethics board to
make an assessment of ethical risk, to look at where the greatest
risks of ethical misconduct are. This is a fantastic idea that
complements Zvenyach's call for a proactive role for the ethics
board. Over time, an ethics commission learns where the greatest
risks are. But there is no reason to wait. An ethics commission can
save itself a lot of time and resources by learning quickly which
are the areas where the problems are the greatest (e.g., procurement, grants, and council slush funds), and then
providing focused training and advice in these areas, making
recommendations for processes that will prevent misconduct in these
areas, and enforcing the laws in these areas to show that
the EC means business, providing clear guidance that
officials will be more inclined to listen to than advisory alerts
that are not followed by enforcement. 
 
Clark's second principal recommendation is to use the financial
disclosure review process to promote ethics awareness. She notes
that, in the past, financial disclosure forms were checked only for
technical completeness: filling in all the blanks. Clark
argues that they should also be checked for compliance with the
substantive ethics standards, that is, to determine whether there
may be conflicts of interest. This is a difficult process, because
it requires information about the matters particular officials are
handling. But if an EC focuses on the areas where the most problems
are, this is doable, and would make financial disclosure much more
valuable to an ethics program than it normally is. 
 
Clark finishes with a series of more minor recommendations,
including a less strict gift rule, an ethics board monopoly on
ethics advice, and an increase in the size of the ethics board. 
 
In my testimony, I argue that the ethics board should not consider
best practices relating to ethics provisions until it attempts to
provide the District with all the essential elements of a government
ethics program, many of which it is still lacking. 
 
1. The ethics board should be truly independent, meaning that it
should appear truly independent to the public. This means that its
members should not be selected by anyone under its jurisdiction. Its
budget should also be guaranteed. 
 
2. The ethics board should have a monopoly on ethics advice and
enforcement. The current ethics program has numerous offices and
individuals providing ethics advice and enforcement, leading to
inconsistent advice and interpretation of ethics laws, and forum
shopping for advice. 
 
3. The ethics board should provide clear guidance
in the form of a consolidated, comprehensible ethics code. Right
now, there is a mess of many sometimes contradictory laws, with
language that only a lawyer can understand. 
 
4. Possible conflicts should be disclosed by those seeking
contracts, permits, grants, and other special benefits from the
District government. 
 
5. The size of the ethics board should be increased. 
 
Tallahassee 
I don't have any written testimony relating to Tallahassee's ethics
forum. An ethics advisory panel was created in November to
make recommendations for improvement of the city's ethics policies
and procedures.The panel is asking for written testimony from those who
could not attend the forum, so I have asked if it will send such testimony to me
for posting, if it is not to be posted on Tallahassee's website. 
 
Fortunately, <a href="http://www.tallahassee.com/story/2013301110021/Citizens-want-tougher-et…; target="”_blank”">the
Tallahassee Democrat has an article</a> that summarizes the
testimony provided to the ethics advisory panel last Thursday,
complete with a short video that contains excerpts from the
testimony of three citizens. Tallahassee, the capital of Florida, is a city of
180,000 that depends on the state ethics program, which is generally
considered to be inadequate (this is why there are so many new
ethics programs in the state). 
 
Erwin Jackson, a businessman and <a href="http://www.erwinjackson.com/documents.php" target="”_blank”">local ethics
blogger</a>, is one of a group of citizens who drafted an ethics
ordinance that provides for an ethics board with powers to
investigate allegations and impose penalties. 
 
Curtis Baynes, also a businessman, said that, at a minimum, city
commissioners should have to file more detailed financial disclosure
statements. 
 
Dale Weeks, a state official, said that the advisory panel should
scour the country for ethics success stories. 
 
Rosemary Palmer, an attorney and former Tallahassee airport
director, recommended prohibition on giving contracts to anyone who had any
transaction with a city official over the past five years on matters
that were not public or at arm’s length. She also said ethics should
be a focus when prospective employees are interviewed. 
 
Unlike the D.C. board, which plans to prepare a report next month,
Tallahassee's ethics advisory panel has a few months to gather
recommendations and consider what sort of ethics program the city should create. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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