The Importance of Characterizing an Ethics Provision
<br>
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.<br>
<br>
A council member had a state senator ask for <a href="http://www.journalgazette.net/assets/pdf/JG9342785.PDF" target="”_blank”">a
legal opinion from the state attorney general</a> 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 <a href="http://www.journalgazette.net/article/20110806/LOCAL/308069969/1002/LOC…; target="”_blank”">an
article in the <i>Journal-Gazette</i></a>, 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.<br>
<br>
A former Fort Wayne city attorney agreed in <a href="http://www.journalgazette.net/article/20110814/EDIT05/308149978/1147/ED…; target="”_blank”">a
<i>Journal-Gazette</i> op-ed piece on Sunday</a>. 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."<br>
<br>
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 <a href="http://www.ogdenonpolitics.com/2011/08/attorney-general-greg-zoeller-is…; target="”_blank”">Ogden
on Politics' post</a>). 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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959