Mis-summarizing and Other Ethics Problems in Chula Vista, CA
The power of the pen is great, and one place that it is especially
powerful in the field of government ethics is in summaries and
directions. Those who write summaries of ethics laws and directions for
filing complaints or other forms can have an enormous effect on
government ethics, either intentionally or negligently, by
mischaracterizing ethics laws and procedures.<br>
<br>
Take, for example, <a href="http://www.chulavistaca.gov/City_Services/Administrative_Services/City_…; target="”_blank”">the
directions for filing a complaint in Chula Vista, CA</a>. They aren't
exactly directions, but they're on the back of the one-page complaint
form, so they will be read as directions.<br>
<br>
<b>Mis-summarizing</b><br>
The directions say that "Complaints must be filed within 60 days of the
alleged violation." This is an extremely short period of time in which
to have to file a complaint. For one thing, a violation is often not
discovered until months after it occurs. In addition, it often takes
time to do what should in many cases be done before filing a
complaint: asking the violator to correct the violation,
discussing the matter with those who may know more or be able to
provide useful advice, etc.<br>
<br>
More seriously, this is not what the law (attached; see below) says, which is: "All alleged violations
must be submitted within 60 days of occurrence or when it should have
been discovered with the exercise of reasonable diligence."<br>
<br>
Someone who learns of a violation three months after it occurred, and
prints out the complaint form, will likely read the directions and toss
the form into the garbage can. Case closed.<br>
<br>
The complaint directions include a listing of requirements and
prohibitions from the code of ethics. Nothing says that this list is
incomplete, although it is, nor that the language is not the language
of the code, which it often is not. In most cases this doesn't matter,
but in some cases it does.<br>
<br>
For instance, the directions say that officials are prohibited from
"divulging confidential information." In fact, the code prohibits the
divulging of confidential information only when it is knowing and "for
personal gain or for the gain of associates in a manner disloyal to the
city." Making it appear that divulging confidential information, which
often occurs, is a violation is asking for frivolous complaints.<br>
<br>
Lastly, the directions talk about the board of ethics' procedures, and
even say what happens when no probable cause of a violation is found
(dismissal). But they do not say what happens if a violation does
happen to be found, or even that this is a possibility.<br>
<br>
What happens, according to the ethics code (attached; see below), is that the board forwards
its findings to the city council "to correct or rectify the condition
that exists." Saying this in the directions for filing a complaint might actually have a similar effect to the
60-day statute of limitations. Who would go to the trouble of filing a
complaint against a council member or a council member's political colleague, especially
if he or she is in the majority, if the council is going to decide or,
if it chooses, not decide the matter?<br>
<br>
<b>Enforcing Aspirational Provisions</b><br>
This is not the only problem with the Chula Vista ethics code. It also
treats aspirational provisions the same way as enforceable ethics
provisions:<ul>
This code of ethics provides the following general guidelines and
specific prohibitions to which city officials must conform in the
pursuit of their assigned duties and responsibilities:<br>
1. All city officials should endeavor to fulfill their obligations to
the citizens of Chula Vista, city management and fellow employees
through respect and cooperation. They should strive to protect and
enhance the image and reputation of the city, its elected and appointed
officials, and its employees. All citizens conducting business with the
city shall be treated with courtesy, efficiency and impartiality and
none shall receive special advantage beyond that available to any
others. Officials shall always be mindful of the public trust and
confidence in the daily exercise of their assigned duties, striving to
conserve public funds through diligent and judicious management.</ul>
These are all good things, but it is certainly not an ethics board's
place to deal with courtesy, efficiency, good management, or the image
and reputation of the city. And to expect impartiality from
officials who take positions on issues when they run for office is to confuse
politicians with judges. Using such broad, aspirational language leads
to complaints such as <a href="http://chulavistaissues.org/charges.pdf">one
against a board member who called citizen groups NIMBYs</a> and
said he was representing realtors on an economic development board.
Another complaint, dismissed just this March, was <a href="http://www.thestarnews.com/latest-news/ethics-complaint-dismissed/">made
against an ethics board member running for a position on the water board</a>.
He was alleged to have used words in campaign materials and speech
that "smack of hatred, racism and contempt."<br>
<br>
Both complaints were dismissed, but they would not have been brought
under an ethics code that separated the aspirational and the
enforceable. Fortunately, this problem occurs primarily in California
and has not spread much outside of it.<br>
<br>
<b>Complaints Against Ethics Board Members</b><br>
In any event, the ethics board should not have considered the complaint
against its own member. Every ethics code should have a provision
dealing with the possibility of a complaint against an ethics board
member. Otherwise, the ethics board is effectively saying that conflicts rules do not apply to it. Here is <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…
one from the City Ethics Model Code</a>:<ul>
§213.12. Nothing in this section may be construed to permit the
Ethics Commission to conduct an investigation of itself or of any of
its members or staff. If the Ethics Commission receives a complaint
alleging that the Commission or any of its members or staff has
violated any provision of this code, or any other law, the Commission
must promptly transmit to the legislative body a copy of the complaint.</ul>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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