How to Untwist a Straightforward Post-Employment Violation

It is a pleasant surprise to find an intelligent conversation about local government ethics in an article and the comments to it. The latest example of this occurred yesterday in the New Haven (CT) Independent, an online newspaper.

The conflict situation involves two instances of lobbying before the city's Board of Zoning Appeals by the city's former Building Official, who retired in April. He was representing the not-for-profit Mutual Housing Association in two different matters.

The Ethics Code
The city's post-employment lobbying provisions reads as follows:

A public official or municipal employee has a conflict of interest if, during the one-year period after termination of their city employment or term of office, they act as a lobbyist for or against any legislative, executive, or administrative action or decision by the city.

"Lobbyist" is defined as:

any person who, on behalf of any person other than himself, or as any part of his duties as an employee or agent of another person, undertakes to influence any legislative, executive, or administrative action or decision by any public official, municipal official, or governmental body of the City of New Haven.

So it's clear that the building official had a conflict of interest, which is effectively (and wrongly) how the ethics code describes a violation. But as one of the commenters points out, he's no longer an official. The basic conflict provision reads:

No officer, employee or official of the City of New Haven, whether elected or appointed, paid or unpaid, shall engage in any activities which result in a conflict of interest.

The provision says nothing about former officials having a conflict. The post-employment lobbying provision is a subdivision of the basic conflict provision, but whoever wrote it did not recognize the problem of saying an official has a conflict in a provision that only applies to former officials. This is not a paradox, it's a mistake.

The principal problem here is that the ethics code does not have a clear jurisdictional provision. There is nothing that says the ethics board has jurisdiction over former officials. There's a lot that says it has jurisdiction over current officials.

Also, the sanction for an ethics violation is removal from office. Not only is this harsh, making it very hard to find a violation when it is minor. But removal has no effect on a former official. It also means that anyone who has violated the ethics code can take another job or leave a position in order to prevent the ethics board from having any jurisdiction over him.

Ethics Advice from the Corporation Counsel
Just as damaging as the ethics code's lack of a jurisdiction provision is how the corporation counsel handled the building official's request for advice, which was made before the building official retired.

What the building official says is, “This has all gone through the corporation counsel. This was key to my retirement.”

What the corporation counsel says is, “What I would have done is sat down and walk through [the Code of Ethics] with Andy. I wouldn’t have said, ‘This is fine.’ I would have said the Board of Ethics is the ultimate authority.”

The problem is that if the corporation counsel walked the building official through the ethics code, he would have said that the ethics board does not clearly have jurisdiction over him and that, even if it did, the worst that could happen is that he would be removed from an office he'd already retired from. It doesn't matter that he said he didn't have the authority. He provided the advice that should have been given only by the ethics board.

In addition, the corporation counsel is responsible for the fact that the ethics board is not given jurisdiction over former officials, and that there is not an appropriate sanction when this occurs. Lobbying within a year after retirement is clearly against the law. It just can't be dealt with in any meaningful way. A corporation counsel who realizes this should have done what he could to have it changed. Since there was a sitting charter revision commission (the code is in the charter), he had the perfect opportunity to remedy the problem.

When an official comes to him for ethics advice, a city attorney should say that he is not permitted to provide it. He should tell the official to go to the ethics board. Of course, this might take months; the board hasn't met since February. Which is why the corporation counsel should recommend to the board of aldermen that it provide the ethics board with a part-time ethics officer to provide timely advice, do ethics training (I took a former corporation counsel's ethics training, and it was worthless), and counsel the ethics board.

Ethics Board Initiative
The article recognizes that the "city government does not have an equivalent of a police internal affairs agency to initiate its own inquiries into potential ethics violation." After reading about this case in the online newspaper, the ethics board, even if it had jurisdiction, could not investigate the matter. This should be changed as part of a wholesale reform of the city's ethics program. In fact, as I wrote in a blog post this March, I was asked by a New Haven charter revision commission member to draft language for the charter to get ethics reform going (a generalized version of my draft appears in the post), and this included ethics board initiative. But the charter revision commission had no interest in it. Perhaps the new mayor to be elected this November will consider improving the city's ethics program as much as possible through an ordinance and executive order.

What the Building Official Should Do
By law, the former building official does not have to do anything. But he has violated the ethics code twice. He also said that he is not a lobbyist, but a consultant, even though his activities clearly fall within the code's definition of "lobbyist."

He may no longer be an official, but he was one this year, he will be getting a pension from taxpayer funds, and at least for the next few months, he has the same obligations he always had. He should not take advantage of poorly written language in the ethics code.

He should file a complaint against himself with the ethics board, admitting that he has violated the ethics code and stating his willingness to pay restitution (what he was paid for his work) and a fine, even though the ethics board cannot impose restitution or a fine itself. It is not barred from entering into a settlement with an official.

The former building official should state in his complaint that he will not lobby before the city for the rest of the twelve-month post-employment period. And he should apologize to the people of New Haven for violating the law. He should also recommend that the law be changed so that the ethics board has jurisdiction over former officials and can impose restitution and fines, since removal is an inappropriate sanction for a former official.

Robert Wechsler
Director of Research-Retired, City Ethics

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