The Gap Between Advice and Enforcement, and The Isolation of Independence
I was on a panel this week as part of the annual Citywide Seminar on
Ethics in New York City Government, co-sponsored by the New York
City Conflicts of Interest Board (COIB) and the Center for New York
City Law at the New York Law School. The panel was called
"Challenges & Solutions in Government Ethics in Other
Municipalities."<br>
<br>
I want to share two ideas that were raised by other members of the
panel, who included Mark Davies, the executive director of the COIB;
Shane Creamer, the executive director of the Philadelphia Board of
Ethics; and Kathleen Clark, until recently Ethics Officer in the
District of Columbia.<br>
<br>
<b>The Gap Between Advice and Enforcement</b><br>
The first idea is the gap between advice and enforcement. I've
written about this issue, but never used this terminology, which I find useful. The gap
comes primarily from the fact that certain concepts, especially
appearance of impropriety, can be used in providing advice but,
because they are vague, cannot be used in enforcement proceedings.
You can say to an official that, although her conduct would be
legal, it would create a serious appearance of impropriety,
undermine the public trust and, therefore, it would be best if she withdrew from participation or did not accept the gift.<br>
<br>
There was a discussion about how large this gap should be. Mark
Davies said that COIB was trying to narrow this gap. The problem, he
said, was that if you say 'No' too often, officials won't ask. Shane
Creamer and I said that this gap should be preserved.<br>
<br>
Here is the argument I wish I had made at the seminar. The rules
that govern enforcement are minimum requirements, which
differentiates them from usual laws. The reason they are minimum
requirements is that government officials and employees have special
obligations, sometimes referred to as a fiduciary duty, that require
them to consider the effects of their conduct on the public's trust
that its government is acting in the interest of the community rather than in the personal interest of its
officials.<br>
<br>
Limiting advice to the law forces an ethics officer to give advice
based on minimum legal requirements rather than what is best for
preserving the public trust. Ethics rules become maximum
requirements, and the difference between law and ethics is lost.<br>
<br>
In other words, there are two gaps involved: between advice
and enforcement, and between ethics and law. Enforcement has to be
limited to law. This leaves ethics to the domains of training and
advice. Closing the advice-enforcement gap limits ethics to
training. After the training class is over, there is no more ethics
program, just a legal program. In this legal program, many of the
innovative ideas I discuss in my new book, <a href="http://www.cityethics.org/ethics%20book" target="”_blank”"><i>Local
Government Ethics Programs</i></a>, would be out of place.<br>
<br>
One of these innovative ideas involves closing the gap in the other
direction, that is, making an ethics program more about ethics than about law. The idea involves a requirement to seek advice. Not only
does it close the gap between advice and enforcement, but it also
deals with Mark Davies' concern about the gap, that is, that no one
will ask for advice if they are told 'No' too often. Here's a
summary of the idea straight out of the book.<ul>
Think how different a government
ethics program would be if it required officials and employees to
ask the
ethics officer for ethics advice whenever they had a special
relationship with
anyone involved in a matter. This simple requirement would focus
officials’
attention on the fact that government ethics is about special
relationships. It
would also help people bypass a lot of obstacles: the blind spots
that cause
most people to feel that they are acting in the public interest; the
reluctance
of many officials to seek advice, either because it involves telling
personal
things to a stranger, because they believe seeking advice puts their
integrity
in question (or is even an admission of guilt), or because they are
concerned
they will be told not to do something they want, or feel they are
required, to
do; and the tendency of many officials to seek advice from a city or
county
attorney rather than an ethics officer.<br>
<br>
A
requirement to seek advice would also effectively remove the line
between
advice and enforcement that causes the many gray areas of government
ethics to
exist in a sort of limbo, where confusion and accusations undermine
the public
trust. By this I mean that the media, blogs, and complainants are
constantly
accusing officials of unethical conduct that falls in a gray area,
where there
is an appearance of impropriety, but not a clear ethics violation.
These areas
would be dealt with through the advisory process rather than through
the enforcement
process, where they create scandals, undermine trust, and sometimes
cost
taxpayers a lot of money.<br>
<br>
Through
ethics advice, a conflict situation can be dealt with quickly and
authoritatively at the time it arises, or even before, preventing
accusations and
de-politicizing ethics.</ul>
This is an ideal solution that I do not expect to see in practice
any time soon. What I would like to see is a trial run of this possible
solution to the gap problem. A city or county with a reform-oriented leadership
that has taken over after a scandal, and wants to take a radical
approach to clean up an organization with a poor ethics environment,
would be the perfect place to try such an experiment.<br>
<br>
<b>The Isolation of Independence</b><br>
The second idea is one that Mark Davies raised regarding a weakness
of a truly independent ethics commission: it has no natural
supporter in government. Of course, a mayor or council that selects
commission members and determines the commission's budget can turn on
a dependent commission if it flexes its wings. But a truly independent
commission, even if it doesn't cause controversy, may find itself
isolated and unable to get support for a budget increase or for valuable
changes to the ethics code.<br>
<br>
But I think this is less a matter of structure than it is of
leadership. Without leadership support for a government ethics
program, it is a struggle to run the program, and it is possible to
improve or expand the program only after a major scandal. An
independent ethics commission that is active and at least trying to
improve its program is in a good position to succeed when a major
scandal opens the door to change.<br>
<br>
But without leadership support,
whether the commission is independent or not, it will not thrive.
With leadership opposition, the effect of its program on a government's ethic environment is likely to be
limited. There will likely be fewer requests for advice, fewer
people taking the training course (and no support to mandate
attendance), limited disclosure at best, attempts to undermine
enforcement, and ongoing personal criticism of the commission and
its staff.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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