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Municipal Attorneys Should Stay Out of Ethics Proceedings
Tuesday, April 15th, 2014
Robert Wechsler
When a city or county attorney's office does not represent the
ethics commission, should that office play any role in an ethics
proceeding? I don't believe it should.
But that is what happened recently in Cobb County, GA, according to an article last week in the Marietta Daily Journal. After an ethics complaint was filed against four of the five county commissioners, the county attorney quickly filed a response "asking the ethics board to dismiss the complaint, which she called unfounded and based on non-legal claims."
I don't know if the response was filed in the name of the respondents, effectively as their counsel, or in the name of the county. But when most of the county commissioners are respondents, this makes little difference. The only question is, whom did the county attorney consult with, the commissioners or the county manager who reports to them? But even this makes little difference, because they are all conflicted. In fact, since the county attorney's office represents all officials, it will always be seen as biased toward the respondents in an ethics proceeding.
A city or county attorney's office should not represent officials in ethics proceedings. These are not civil proceedings against the local government that include individual officials as defendants. They are citizen oversight proceedings against individual officials for the alleged breaching of personal fiduciary duties. A city or county attorney's office should tell officials that they must seek private attorneys to represent them. And it should leave the determination of allegations to the ethics commission and its counsel. The city or county attorney's opinion can only harm the ethics process, because the opinion will be seen as biased toward the respondents. If the ethics commission agrees, it will look as if it too is biased toward the county commissioners.
It was good to see that the ethics board's counsel said the right thing in offering to withdraw from participation in the proceedings because he is also counsel to the Cumberland Community Improvement District, which provided a grant in support of the project that is the subject of the complaint. He is quoted as saying, “I believe, under the circumstances there may be an appearance that I may be in conflict even though I’ll tell the board I don’t feel like that would be a problem or that I could do anything other than be fair and impartial in my consideration and advice to the board. But I think appearances, especially with the Board of Ethics, are very important.” We all feel we can be fair and impartial, but what matters is how we appear. And how the county attorney's opinion appears is biased, even if it may be totally correct.
Robert Wechsler
Director of Research-Retired, City Ethics
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But that is what happened recently in Cobb County, GA, according to an article last week in the Marietta Daily Journal. After an ethics complaint was filed against four of the five county commissioners, the county attorney quickly filed a response "asking the ethics board to dismiss the complaint, which she called unfounded and based on non-legal claims."
I don't know if the response was filed in the name of the respondents, effectively as their counsel, or in the name of the county. But when most of the county commissioners are respondents, this makes little difference. The only question is, whom did the county attorney consult with, the commissioners or the county manager who reports to them? But even this makes little difference, because they are all conflicted. In fact, since the county attorney's office represents all officials, it will always be seen as biased toward the respondents in an ethics proceeding.
A city or county attorney's office should not represent officials in ethics proceedings. These are not civil proceedings against the local government that include individual officials as defendants. They are citizen oversight proceedings against individual officials for the alleged breaching of personal fiduciary duties. A city or county attorney's office should tell officials that they must seek private attorneys to represent them. And it should leave the determination of allegations to the ethics commission and its counsel. The city or county attorney's opinion can only harm the ethics process, because the opinion will be seen as biased toward the respondents. If the ethics commission agrees, it will look as if it too is biased toward the county commissioners.
It was good to see that the ethics board's counsel said the right thing in offering to withdraw from participation in the proceedings because he is also counsel to the Cumberland Community Improvement District, which provided a grant in support of the project that is the subject of the complaint. He is quoted as saying, “I believe, under the circumstances there may be an appearance that I may be in conflict even though I’ll tell the board I don’t feel like that would be a problem or that I could do anything other than be fair and impartial in my consideration and advice to the board. But I think appearances, especially with the Board of Ethics, are very important.” We all feel we can be fair and impartial, but what matters is how we appear. And how the county attorney's opinion appears is biased, even if it may be totally correct.
Robert Wechsler
Director of Research-Retired, City Ethics
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