Jurisdiction Over a Mayor-Elect, and Misconduct Disclaimers

There are two interesting wrinkles in the Forest Park, GA case I wrote about in the last blog post. According to an article in the Clayton News Daily last Friday, a former Forest Park public works director alleged in an ethics complaint that, in an e-mail message, the mayor had illegally ordered the then city manager to remove him. If true, this would be both a charter and an ethics violation in Forest Park.

Jurisdiction over Elected Officials Who Have Not Yet Taken Office
During the ethics board's discussion of the complaint, one board member pointed out that, when the e-mail message was sent, the mayor had been elected, but had not yet taken office. Another board member responded that the e-mail message had been sent from city hall, and wondered aloud why the mayor-elect would have wasted his time telling the city manager something he knew would have no effect because he had not yet taken office. That is, the mayor-elect appeared to be acting as mayor. If this is true, then does it matter whether or not he was legally mayor yet? In other words, does an ethics board have jurisdiction over someone acting as mayor (de facto misconduct) even though he is not the de jure mayor?

This is a fascinating question, and one that few if any ethics codes deal with. But it would be difficult for a mayor to argue that an ethics board had no jurisdiction over his ethical misconduct as mayor-elect, especially when he was acting as if he were the mayor.

It's more arguable that a gift given to a mayor-elect is not illegal. How about a contract? Let's say that the mayor-elect had a brother who was seeking a no-bid contract from the city. Would there be any difference between the use of his influence as mayor-elect to get the brother the contract and the use of the same influence as de jure mayor to do the same thing? When it comes to appearance of impropriety, there is no difference.

In fact, this is an argument for making candidates subject to ethics program jurisdiction. A candidate can have a great deal of influence, even before an election. A candidate can make deals that help herself, or those with whom she has special relationships, even before she takes office, even before she is elected, even if she ends up losing the election.

Some ethics programs do have jurisdiction over candidates, but I don't know of any that has jurisdiction over officials-elect. If candidates and officials are under an ethics program's jurisdiction, are officials-elect also subject to this jurisdiction? It would be ridiculous for them not to be.

To deal with this issue, I have added the following sentence to the City Ethics Model Code's definition of the term "official or employee":

The term also includes candidates for office and elected candidates prior to the time they take office.

Misconduct Disclaimers
The second wrinkle is more unusual, but equally intriguing. The Forest Park mayor-elect, who is a lawyer, placed the following disclaimer at the end of each of his e-mails:

“Notwithstanding whether any communication from this office may be interpreted otherwise, David N. Lockhart does not publicly or privately give orders to any officer, department head or employee of the City of Forest Park. Any interpretation of any communication from this office which is inconsistent with the foregoing is incorrect.”

In other words, aware that giving orders to a member of the city's executive branch is a charter and ethics violation, the mayor sought to protect himself, by means of a disclaimer, from being found in violation, even when the e-mail message it was appended to gave a different impression.

Could the mayor order someone to be fired at the same time as he insisted that this should be interpreted otherwise and, therefore, that he is not in violation of the charter?

Let's take a more common ethics situation: a mayor accepts a gift in a jurisdiction that prohibits officials from accepting a gift that might be seen as influencing their behavior. Can the mayor protect himself from an ethics violation by assuring the gift giver, in an e-mail, that he will do what he can to get the gift giver a contract, followed by a disclaimer stating that no one should interpret the e-mail as evidence that the gift in any way influenced his behavior?

My answer to both questions is a resounding No. But according to the article, the Forest Park city attorney said that the disclaimer could countermand whatever the mayor writes in an email. And on this basis, the city attorney recommended dismissal of the complaint without an investigation or hearing.

The city attorney needs a good lesson on the appearance of impropriety and how an official can prevent it. An official cannot create an appearance of impropriety and then, with the whisk of a legal wand, make it disappear. An official cannot control the interpretation of his words in this manner. This is not prevention. It is effectively a simultaneous cover-up.

The city attorney should admit that he was wrong and ask the ethics board to hold another meeting to consider the complaint. And the city attorney should not advise it any longer. An independent attorney should do this.

If this decision is allowed to stand, I would not be surprised if, at the next meeting of Georgia's municipal attorney association, there is a panel on the drafting of ethics and charter violation disclaimers.

Robert Wechsler
Director of Research-Retired, City Ethics

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