Independent Non-Sitting Ethics Panels in Georgia

Anonymous

Thu, 01/03/2013 - 05:16

Advisory Opinions

I'm a big supporter of making ethics commissions independent of
those over whom they have jurisdiction. Milton, Georgia and, now,
Forsyth County, Georgia have come up with an interesting approach to
ethics commission independence that has one good point and several
bad points. 
 
The <a href="http://www.ajc.com/news/news/forsyth-county-reconstructs-ethics-board-t…; target="”_blank”">recent
amendments to the Forsyth County ethics code</a> (<a href="http://library.municode.com/HTML/13631/level3/PTIICOOR_CH2AD_ARTIIIETST…; target="”_blank”">the
ethics provisions are here</a>) were modeled after <a href="http://library.municode.com/showDocumentFrame.aspx?clientID=14592&jobId…; target="”_blank”">Milton's
code</a> (this is the complaint procedure; the code is in Ch. 2,
Art. VIII), which was passed in 2010 (Forsyth County's county
attorney, Ken Jarrard, is also Milton's city attorney) . 
 
The Milton code requires that, after determining that an ethics
complaint meets the basic requirements, the city clerk create a
special ethics panel by picking three names randomly from a list of
between nine and fifteen out-of-town attorneys, whose qualifications
need not include any knowledge of government ethics. In Forsyth
County, a panel is also created to respond to a request for an
advisory opinion.

The good point of this idea is that it ensures that complaints and
advisory opinions are dealt with by individuals who are, and are
perceived to be, independent. 
 
I will look at four of the idea's bad points. One, the idea does not provide
the county with an ethics program. There cannot be an ethics program
without a sitting body or an office that is entrusted with doing more
than holding hearings and giving formal advice. An ethics program
involves training, timely advice, disclosure, and ongoing oversight.
Milton's program does not provide for any ethics advice, which is
the most important part of an ethics program. 
 
Two, limiting membership on an ethics panel to lawyers ensures a
legal rather than government ethics approach to ethics advice and
enforcement. There is no reason to believe that lawyers will do a
better job than any other professionals or educated individuals, as
long as they have legal counsel. There is, however, reason to
believe that lawyers will treat ethics questions as legal questions,
for example, failing to treat ethics provisions as the minimum
requirements they are. It is telling that members of the ethics
panel are required to have civil litigation experience, but no
training or experience in government ethics. 
 
Three, creating panels of lawyers is an expensive way to deal with
ethics complaints and requests for advice, and ensures that advice
will almost never be timely. It would be better to hire a part-time
ethics officer, or to share an ethics officer with neighboring
cities and counties. At least you would be paying for someone with
expertise, who has experience and understanding of government
ethics. Add a volunteer ethics commission selected by community
organizations, or a regional commission, and you do not increase the
costs at all. 
 
Four, the creation of independent ethics panels does not solve the
biggest problem with the Milton and Forsyth County codes: the
fact that their ethics provisions use aspirational language. For
example, the first provision for county employees is, "Put
loyalty to the highest moral principles and to country above
loyalty to persons, party, or government department." Or take the
fifth provision for elected officials and board members, "Expose
corruption wherever discovered." 
 
These rules are taken from a <a href="http://www.aug.edu/businessservices/OCGA%2045-10-1.pdf" target="”_blank”">state statute §45-10-1</a>. And the idea of a non-sitting ethics panel derives from one of the enforcement alternatives in the <a href="http://www.gmanet.com/Assets/PDF/gma_sampleethicsordinance.pdf" target="”_blank”">Georgia Municipal Association's sample ethics ordinance</a>, part of its Cities of Ethics program. But need local officials look no further than their own state, especially when their state is not known for its great ethics programs? And even then, why not look at the best program in the state, Atlanta's, which has an independent, sitting ethics board selected by community organizations, an independent ethics officer selected by the board, and no aspirational provisions? 
 
It appears from the articles that a principal reason for changing
the rules in Forsyth County was that there were so many ethics
complaints being filed. Of course there were. Every time an official
opened his mouth, or didn't, he could be cited for an ethics
violation. And there is no one to help potential complainants
determine whether their allegations are actually ethics allegations.
An ethics panel can't do this, because it doesn't exist until the
complaint has been filed. An ethics officer can prevent the filing
of inappropriate complaints, or dismiss them immediately (the clerk
can do this, but a clerk has no ethics training, and is not
independent, so that his or her dismissal of a complaint could be
seen as favoring political allies). 
 
<a href="http://www.ajc.com/news/news/forsyth-county-reconstructs-ethics-board-t…; target="”_blank”">A
recent Atlanta Journal-Constitution article</a> notes that since
Milton changed to the ethics panel approach, there have been no
ethics complaints. But there could be many reasons for this. A
principal one was rejected in Forsyth County: a wrongful use
provision that can turn any complaint into a complaint against the
complainant, with the complainant open to paying expenses, being
convicted of perjury, and being publicly reprimanded by the mayor
and city council. 
 
The only good reason for wanting an end to ethics complaints is that
an ethics program has done a good job of preventing ethical
misconduct by providing training, timely advice, and ongoing
discussion among officials of the ethics issues in matters that come
before them. An ethics panel approach to government ethics does none
of these things. 
 
Forsyth County's approach is better than Milton's, because it
includes advice and does not have a wrongful use provision. But it
still rests of the enforcement of aspirational language. It is very
hard for anyone, especially lawyers, to enforce these rules in a
fair manner. 
 
It's great to see new ideas being tried, especially when they
provide independence. I consider ethics commission independence the
single most important feature of a local government ethics program,
but this means having an ethics commission, not a series of separate
panels. An ethics program is an oversight program, and oversight can
best be provided by a body or office that has an ongoing existence
and feels a responsibility for the maintenance and continuing
improvement of the ethics program and the government's ethics
environment. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Independent Non-Sitting Ethics Panels in Georgia

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