The Importance of Characterizing an Ethics Provision

How you present an ethics provision can make all the difference. Take a pay-to-play ordinance proposed in Fort Wayne, which would limit the amount of contributions and gifts that can be given to city officials by an individual or entity if it wants to have a no-bid contract with the city.

A council member had a state senator ask for a legal opinion from the state attorney general on the validity of the proposed ordinance. The AG found that the ordinance would regulate conduct that can only be regulated by a state agency. But this is based on the AG's characterization of the ordinance as a campaign finance law, that is, a restriction on contributions. However, according to an article in the Journal-Gazette, the sponsor of the ordinance characterizes it as a law that restricts who can get city contracts. "Nothing in this ordinance would ever prevent anyone from making a contribution, period," she is quoted as saying. Since the state election commission does not regulate city contracts, if the ordinance indeed is a restriction on who can get a city contract, there would be no interference with state regulation and, therefore, the law would be valid.

A former Fort Wayne city attorney agreed in a Journal-Gazette op-ed piece on Sunday. He also noted that "A legal opinion is not a guarantee of the outcome of any future legal challenge to an ordinance but represents, at best, a reasoned opinion as to the probability of that outcome. The only legal opinion that counts in cases like this is the majority opinion of the last appellate court to review such a challenge. Had this mindset (that no proposed ordinance should be discussed on its merits because of the possibility of a future legal challenge) prevailed in the past, ordinances involving annexations, restrictions on smoking in public places, and regulations of signs and billboards would never have been adopted in this city."

Because the AG opinion does not consider the city's legislative intent and omits important language in a decision it cites, it leaves itself open for an accusation of politicizing what is presented as a neutral legal opinion (see Ogden on Politics' post). A legal opinion should consider both sides of a matter. Even if the AG disagrees with how a city has characterized its proposed ordinance, it has to state this view and give solid reasons why the city's view is not accurate. Instead, the AG simply characterizes the ordinance as a campaign finance law, with no supporting argument. Whether it is right or not, this opinion is incomplete and, therefore, appears to be biased in a way that the opinion of a government attorney should not be.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959