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A Miscellany
Saturday, February 22nd, 2014
City Attorney Ethics Enforcement in San Francisco
An article in the San Francisco Chronicle this week says that the city attorney filed a lawsuit against a former member of the board of supervisors (the city's legislative body) who acted as a lobbyist, but failed to register (in arguing that he was acting as an attorney, the supervisor pointed to an unfortunate exception in the lobbying law, for professionals when they are "performing a duty or service that can be performed only by an attorney, an architect or a professional engineer." There is now talk of amending this exception.).
The article says that the lobbyist registration provision "is routinely ignored and enforcement is rare. The Ethics Commission ... has dismissed 12 of the 15 complaints for unregistered lobbying since the law took effect, according to commission records. The other three resulted in settlements with combined fines of $10,750." The top sanction is $5,000 per incident; the city attorney alleged that there were 70 incidents.
In this case, the former supervisor has offered to pay a $75,000 fine to settle the case, but without admitting that he had done anything wrong (the settlement is attached; see below).
The city attorney is quoted as saying, "Like others, I have been concerned with the fact that it appears that our ethics laws were perhaps not being enforced as vigorously and as broadly as they should have." In fact, the former president of the board of supervisors had filed an ethics complaint with the EC on this very matter three months before the city attorney filed his suit. It's not clear whether any decision had been made by the EC, since the EC's website is abominable (for instance, the most recent press release is from 2008).
It is generally inappropriate (and very expensive; the complaint was 468 pages long) for a city attorney to get involved in the enforcement of ethics laws, and it is not a best practice to allow ethics settlements that do not require admission of an ethics violation. However, if the EC is not doing an effective enforcement job, because it lacks the personnel or for any other reason, it is acceptable for enforcement to be done by other authorities, whether criminal or civil, local, state, or federal. I don't know enough to say whether the city attorney's involvement in this case, at this point in the case, was appropriate, but I do hope that this will allow the lobbying registration requirements to be better enforced in the future.
An EC Recommending Changes to Prevent Ethical Misconduct
Attached is a valuable advisory opinion from Honolulu's ethics commission, in a case where the manager of the water board entered into contracts with the water board about a year after leaving his position. The opinion carefully goes through the application of several ethics provisions to the facts, and finds that there is no evidence of an ethics violation. To some extent, this is because of the limitations of the post-employment provisions, which allow former employees to contract with their agency. It shows how important it is to make it clear that this cannot be done, and to especially prohibit recent subordinates from sitting on contract selection boards when a former employee is bidding.
What is most valuable about this opinion is that it does not stop at the finding of no violation. It recognizes that there were problems in the procurement process, and recommends that the city auditor and the water board together review and make "reasonable process changes" in five areas. It is important that ECs recognize that although their authority may end with a decision, it has the obligation to help prevent further problems by sharing the insights it gained in its investigation and making recommendations to the proper authorities to look into them and make appropriate changes.
Investigating Online Allegations
According to an article yesterday in the Troy (NY) Record, Troy's ethics commission, after receiving a request from a city resident, discussed media reports of a council member visiting the state liquor authority to advocate for a local night club that had had a recent incident, and decided to investigate the matter. It also discussed the council president's alleged financial interest in the night club, which had been reported online and might be relevant to the investigation.
The council president went public with a denial of any interest in the nightclub, but instead of letting the EC simply dismiss the investigation with regard to him, he expressed his concern that the EC would investigate something based on online information, and referred to the investigation as “a witch hunt," adding, “Unfortunately, I think those actions make a mockery of [the commission] by not looking into it beforehand.”
The EC chair said that the EC was simply going to verify whether whether the allegations were true. That is, after all, its job. The fact that it made this public before investigation is unusual, but as long as it acts quickly, it will only clear the air about the council president's involvement, something that the blogosphere could not do. It is the role of an EC not only to find officials in violation of an ethics rule or involvement in someone else's misconduct, but also to clear them of allegations, whether made in a formal complaint or made in the news or online media. Officials need to understand that this helps them, at least if it is done in a timely and responsible manner.
Robert Wechsler
Director of Research-Retired, City Ethics
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An article in the San Francisco Chronicle this week says that the city attorney filed a lawsuit against a former member of the board of supervisors (the city's legislative body) who acted as a lobbyist, but failed to register (in arguing that he was acting as an attorney, the supervisor pointed to an unfortunate exception in the lobbying law, for professionals when they are "performing a duty or service that can be performed only by an attorney, an architect or a professional engineer." There is now talk of amending this exception.).
The article says that the lobbyist registration provision "is routinely ignored and enforcement is rare. The Ethics Commission ... has dismissed 12 of the 15 complaints for unregistered lobbying since the law took effect, according to commission records. The other three resulted in settlements with combined fines of $10,750." The top sanction is $5,000 per incident; the city attorney alleged that there were 70 incidents.
In this case, the former supervisor has offered to pay a $75,000 fine to settle the case, but without admitting that he had done anything wrong (the settlement is attached; see below).
The city attorney is quoted as saying, "Like others, I have been concerned with the fact that it appears that our ethics laws were perhaps not being enforced as vigorously and as broadly as they should have." In fact, the former president of the board of supervisors had filed an ethics complaint with the EC on this very matter three months before the city attorney filed his suit. It's not clear whether any decision had been made by the EC, since the EC's website is abominable (for instance, the most recent press release is from 2008).
It is generally inappropriate (and very expensive; the complaint was 468 pages long) for a city attorney to get involved in the enforcement of ethics laws, and it is not a best practice to allow ethics settlements that do not require admission of an ethics violation. However, if the EC is not doing an effective enforcement job, because it lacks the personnel or for any other reason, it is acceptable for enforcement to be done by other authorities, whether criminal or civil, local, state, or federal. I don't know enough to say whether the city attorney's involvement in this case, at this point in the case, was appropriate, but I do hope that this will allow the lobbying registration requirements to be better enforced in the future.
An EC Recommending Changes to Prevent Ethical Misconduct
Attached is a valuable advisory opinion from Honolulu's ethics commission, in a case where the manager of the water board entered into contracts with the water board about a year after leaving his position. The opinion carefully goes through the application of several ethics provisions to the facts, and finds that there is no evidence of an ethics violation. To some extent, this is because of the limitations of the post-employment provisions, which allow former employees to contract with their agency. It shows how important it is to make it clear that this cannot be done, and to especially prohibit recent subordinates from sitting on contract selection boards when a former employee is bidding.
What is most valuable about this opinion is that it does not stop at the finding of no violation. It recognizes that there were problems in the procurement process, and recommends that the city auditor and the water board together review and make "reasonable process changes" in five areas. It is important that ECs recognize that although their authority may end with a decision, it has the obligation to help prevent further problems by sharing the insights it gained in its investigation and making recommendations to the proper authorities to look into them and make appropriate changes.
Investigating Online Allegations
According to an article yesterday in the Troy (NY) Record, Troy's ethics commission, after receiving a request from a city resident, discussed media reports of a council member visiting the state liquor authority to advocate for a local night club that had had a recent incident, and decided to investigate the matter. It also discussed the council president's alleged financial interest in the night club, which had been reported online and might be relevant to the investigation.
The council president went public with a denial of any interest in the nightclub, but instead of letting the EC simply dismiss the investigation with regard to him, he expressed his concern that the EC would investigate something based on online information, and referred to the investigation as “a witch hunt," adding, “Unfortunately, I think those actions make a mockery of [the commission] by not looking into it beforehand.”
The EC chair said that the EC was simply going to verify whether whether the allegations were true. That is, after all, its job. The fact that it made this public before investigation is unusual, but as long as it acts quickly, it will only clear the air about the council president's involvement, something that the blogosphere could not do. It is the role of an EC not only to find officials in violation of an ethics rule or involvement in someone else's misconduct, but also to clear them of allegations, whether made in a formal complaint or made in the news or online media. Officials need to understand that this helps them, at least if it is done in a timely and responsible manner.
Robert Wechsler
Director of Research-Retired, City Ethics
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| Attachment | Size |
|---|---|
 SF city attorney settlement 0214.pdf | 0 bytes |
| Honolulu adv op 0214.pdf | 0 bytes |
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