Jurisdiction Over a Mayor-Elect, and Misconduct Disclaimers
There are two interesting wrinkles in the Forest Park, GA case I
wrote about in <a href="http://www.cityethics.org/content/problems-ec-jurisdiction-over-charter…; target="”_blank”">the
last blog post</a>. According to <a href="http://www.news-daily.com/news/2013/oct/11/ethics-board-clears-mayor-co…; target="”_blank”">an
article in the Clayton <i>News Daily</i> last Friday</a>, 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.<br>
<br>
<b>Jurisdiction over Elected Officials Who Have Not Yet Taken Office</b><br>
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 <i>legally</i> 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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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":<blockquote>
The term also includes candidates for office and elected candidates prior to the time they take office. </blockquote>
<b>Misconduct Disclaimers</b><br>
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:<blockquote>
“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.”</blockquote>
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.<br>
<br>
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?<br>
<br>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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