Interesting Ethics Issues in Santa Fe

Anonymous

Fri, 09/16/2011 - 07:43

City Related

A lot of interesting issues have arisen with respect
to Santa Fe's <a href="http://www.santafenm.gov/index.aspx?NID=1454" target="”_blank”">Ethics and
Campaign Review Board</a>. 
 
A Majority of Lawyers on an Ethics Board 
First, a new selection process was created, and the ethics board members were
replaced some time between the July and August meetings. Instead of
having council members individually select ethics board members,
which was a terrible idea, now a local bar association selects 8 lawyers, from which the mayor appoints 4, plus 3 non-lawyers of his
choice. <a href="http://www.cityethics.org/node/770" target="”_blank”">The
involvement of nonpartisan civic organizations in the selection of
ethics board members</a> is a great idea, but not (1) when there
is only one such organization and (2) when it is required to select
only lawyers.

There is no doubt that lawyers understand procedures better than
laypersons, but an ethics board's counsel can handle procedural
matters perfectly well, without four lawyers squabbling about them
(see the <a href="http://www.santafenm.gov/archives/196/08-12-11%20ECRB%20c.pdf" target="”_blank”">August
meeting minutes</a> for what can be expected from a majority of
lawyers on an ethics board). 
 
What is in doubt is whether lawyers understand government ethics
better than laypersons. From my experience, the opposite may be
true, for two reasons. One is that legal ethics is very different
from government ethics, and most lawyers (even most judges) do not
appear to understand the difference. Two is that lawyers think in
terms of legality, that is, the words of the law are what matters
most. Other people tend to give more weight to the spirit of an ethics code, which is to prevent appearances of
impropriety from undermining the public's trust in government. It is
lawyers' involvement in local government ethics programs,
as drafters, advisers, and politicians, that is the
single most important reason that these ethics programs are so poor. 
 
One would think that having a professional organization make ethics board
selections would at least make the process more
professional. But the bar association did not
act very competently. According to <a href="http://www.santafenewmexican.com/local%20news/Ethics-complaint-remains-…; target="”_blank”">an
article in the Santa Fe New Mexican</a>, two of its eight
selections did not even live in the city, and already at the first
meeting one lawyer stated that he might have a conflict with respect
to council members, while the new chair himself said that he had to
consider his participation in matters, because his firm represents
government entities. At <a href="http://www.santafenm.gov/archives/196/09-02-11%20ECRB.pdf" target="”_blank”">the
September meeting</a>, three of the new members recused themselves
from participating in the matter before them (see below). Couldn't the bar
association have asked prospective members about possible conflicts
before it made its selections? And couldn't the bar association have
been perceptive enough to recognize that many, if not most, lawyers
in the city would have conflicts that would require recusal in
numerous cases involving higher-level officials? 
 
It is also ironic that the mayor was given appointment authority
when, according to <a href="http://www.santafenewmexican.com/Opinion/Our-view-Dog-days--for-ethics&…; target="”_blank”">a
Santa Fe New Mexican editorial in July</a>, the board was created
due to the then mayor's ethical misconduct. 
 
Use of Government Resources for Personal Benefit 
The current matter before the board raises interesting issues
with respect to the use of local government resources for personal
benefit. According to <a href="http://www.abqjournal.com/main/2011/09/11/north/appearance-in-itself-is…; target="”_blank”">an
editorial in the Albuquerque Journal</a> this week, a council
member traveled all over the world as honorary chair of the
UNESCO Creative Cities Network conference, but was "sketchy" in her
disclosure of who paid for the trips. 
 
Then she organized the city’s first “creative tourism” conference,
which led to the publication of a "coffee-table book" on the
subject, at a total cost to taxpayers of "well over half a million
bucks." Then she "used her professional experience gleaned from
these activities as advertising for her creative tourism consulting
company." 
 
According to <a href="http://www.santafenewmexican.com/localnews/Wurzburger-s-tourism-tab-und…; target="”_blank”">another
New Mexican article</a>, the council member has defended herself
by saying that "no one has made any money off the book. Doing a book
as a support to the conference is totally legitimate."
And she also says that her consulting business has not earned a
profit yet, so there is no personal gain. 
 
The editorial, on the other hand, argues that, "To the average
person-on-the-street (as opposed to a member of the ethics board),
[the council member's] activities look pretty close to the
definition of an ethics violation spelled out in the new code,
namely 'using municipal services, personnel or equipment' for
personal benefit." 
 
Does Personal Benefit Require Profit? 
One question here is that if someone starts a business, does it have
to turn a profit before there is "personal benefit"? I don't think
it does. The success or failure of an attempt to profit from one's
position should not be relevant to whether there is an ethics
violation. 
 
Using City Resources to Further One's Reputation 
Another question is whether there was anything untoward about the
city paying for the conference and the book in the first place, even
if the council member had not started a related business. The
council member says that no one directly benefitted from the
conference or the book, but the appearance is that the council
member was using her position to get the city to spend a lot of
money on matters that did little or nothing to benefit the city, but
rather helped the council member's reputation as an international
leader in the tourism field. 
 
It is difficult to characterize the city paying for the conference
and book alone as an ethics violation, but it certainly should lead
to a discussion about why the other council members went along with
the conference and book, and what deals might have been made in
return. 
 
Motive 
A third question involves motive. It would seem that the council
member's motive would be important here. Did she take the trips,
hold the conference, and have the book published at a great expense
to the city in order to profit financially, to give her a new
career, or just because it was exciting for her? 
 
Although this seems
important, motive is not an issue in ethics proceedings, because
motive is something very hard to know, not to mention prove. The
public has reason to believe that the council member sought to
profit from her actions, and that's what matters. 
 
Appearance 
The views of two major newspapers' editorial boards shows
how serious the appearance of impropriety is in this case. As in so many ethics
cases, one side focuses on appearances while the other focuses on
the language in the ordinance, interpreting it as narrowly as
possible. 
 
When this matter arose and it became clear that there was a serious
appearance problem, the council member should have shut down her
business and promised that she would not work in the travel field
either while a council member or, if she retires or is not
re-elected, for a reasonable number of years (say, five) after the
book was published. It is not too late for her to do this. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

Search

Interesting Ethics Issues in Santa Fe

Tags

Share This Page