A Miscellany

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 commissioner of political practices, the office that runs the state's ethics program.

According to an article in yesterday's Great Falls Tribune, 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 an article yesterday in Cottage Country Now, 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 Chicago Tribune article yesterday, 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 Indianola, Iowa (pop. 13,000) has helpfully included a definition of conflict of interest on his blog, because the issue arose at the council's most recent meeting. Here's the definition he provided:

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.

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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