A Miscellany

Anonymous

Thu, 12/23/2010 - 08:52

City Related

Government Executives and the Ethics Commission Selection Process 
Should government chief executives appoint ethics commission members or their
staff? The common practice is that they usually do. But the common
practice is not necessarily the best practice, especially when it puts a conflict of interest at the heart of the conflict of interest process. 
 
This issue has arisen in a very concrete way in Montana, where the
governor is faced with appointing a new <a href="http://politicalpractices.mt.gov/default.mcpx">commissioner of
political practices</a>, the office that runs the state's ethics
program.

According to <a href="http://www.greatfallstribune.com/article/20101222/NEWS01/101222005/Schw…; target="”_blank”">an
article in yesterday's Great Falls Tribune</a>,
there are outstanding ethics charges against the governor, and there has been an initial ruling by the current
commissioner that the governor violated the ethics code by using state
funds to record a public service announcement after he filed for
re-election. 
 
What can the governor do? He could turn the appointment over to one
or more neutral parties, say, a judge or judges, or representatives of
good government groups. This would fully distance himself from the
selection process, and ensure that the new commissioner was perceived
as fully independent. But that is not what he has chosen to do. 
 
Instead, he has done something only a lawyer could have thought up.
He has told all applicants for the position that he will appeal the new
commissioner's decision so that the district court will be the final
decision-maker, rather than the commissioner. But won't the new
commissioner be in charge of defending, or overseeing the defense, of
his decision? The "final decision-maker" is not the only thing that matters here. 
 
Also, does this mean that, if the commissioner finds in favor of the
governor, the governor will still appeal the decision? On what basis? 
 
The governor should turn the appointment process over to one or more
neutral parties, and give serious consideration to making the new
selection process permanent. 
 
No Advice and Draconian Penalties Is Not a Good Combination 
Here's an odd situation in Bala Falls, Ontario, which shows severe
limitations in Ontario's ethics program. Several council candidates ran
on a platform that features stopping a hydroelectric project from being
built. But now that they're on the council, it turns out that some of
them have possible conflicts, such as owning property near the proposed
power station, a conflict regarding a council member's business, and a
more tenuous conflict regarding membership on the board of a
corporation that does business with a proponent of the project. 
 
The procedure for dealing with these possible conflicts is not a good
one. According to <a href="http://www.cottagecountrynow.ca/news/cityhall/article/920425--conflict-…; target="”_blank”">an
article yesterday in Cottage Country Now</a>,
with the canine headline "Conflict Rules Muzzle Council," the
township's CAO said that each of the council members with a conflict
issue has to see an individual lawyer and pay the cost out of his or her own
pocket. 
 
The spokesperson for the Ministry of
Municipal Affairs and Housing said that the ministry does not provide
advice. He said that "undeclared conflicts of interest could
result in a councillor losing his or her seat. A citizen can apply to
the courts in the case of a suspected undeclared conflict of interest.
'Alleged contraventions are decided on by the courts, not the
municipalities (and) not the ministry.'" 
 
He added that "a judge has the power to declare a councillor’s seat
vacant, disqualify a councillor from holding public office for a period
of up to seven years or order the councillor to make restitution." 
 
Those are pretty severe penalties under a conflict of interest code
that does not provide for ethics advice. It appears that the
Ontario ethics program has its priorities wrong. It should focus on
training and advice, especially when there are such draconian penalties for a
failure to disclose a conflict. The result of the current program, to the
extent officials understand it, should be to declare even the slightest
possible relationship, to the point where it's no longer clear what is
an important conflict and what is not. 
 
Nepotism Falls on Deaf Ears in Cook County 
"It's trying to kill a dead horse." According to <a href="http://www.chicagotribune.com/news/local/ct-met-cook-county-hiring-2010…; target="”_blank”">a
Chicago Tribune article yesterday</a>, those were the words of the new
Cook County assessor when he learned that a letter was sent by the county IG and the
county ethics board director to all elected officials "telling them
that hiring relatives who will work under their direct supervision
violates the county's ethics code." 
 
Of course, this sounds like trying to keep the horse clean, rather than
killing it. But if you were the assessor and had just appointed your
son and your sister, you might think different. 
 
It was a good thing for the IG and ethics director to work together to
both prevent more ethics code violations in the area of nepotism, and
send a clear message to the assessor, one he is clearly unwilling to
listen to. His ears are so closed to reason that, although the letter
expressly says that the rule "does not make exceptions for
policy-setting employees who are not subject to the federal ban on
political hiring" and that "there is no exception for 'a high degree of
competence,'" the new assessor insists his son and sister are exempt
from the political ban and are well-qualified. 
 
One wonders if the assessor will be able to read the ethics complaint
when it arrives in the mail. 
 
Defining "Conflict of Interest" 
The city manager of <a href="http://www.cityofindianola.com/" target="”_blank”">Indianola, Iowa</a> (pop.
13,000) has helpfully included a definition of conflict of interest on <a href="http://indianolacitymanagerblog.blogspot.com/2010/12/news-items-decembe…; target="”_blank”">his
blog</a>, because the issue arose at the council's most recent meeting.
Here's the definition he provided:<ul>

A conflict exists when there is a clash between public and
private duty, or the loyalty owed an employer and the duty to act in
the public interest. The good faith of the public official and lack of
corruption are not defenses. The disqualifying conflict need not be
actual, nor based on dishonesty, but rather is predicated upon whether
there is a potential of a conflict or an appearance of an impropriety
that is more than fanciful.</ul>

As definitions of conflicts go, this isn't a bad one. It recognizes the
importance of appearances of impropriety and the fact that the
potentiality of a conflict is important, not just the existence. It
also recognizes that conflicts are not about an official's honesty,
good faith, or corruption, although he explains this in a legal way, in
terms of defenses. But there are a lot of vague terms here that do not
have clear meaning for most local government officials. Terms such as
"public and private duty," the "loyalty owed an employer," and the
"fancifulness" of an "appearance of impropriety." 
 
This definition will likely get thinking individuals thinking, but it
won't provide much in the way of guidance. Even the best definition is
not adequate; an ethics program is required, with training and advice
and processes for disclosure and enforcement. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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