New Michigan Model Local Government Ethics Ordinance Is a Lemon
This week, Michigan Attorney General Mike Cox <a href="http://www.michigan.gov/ag/0,1607,7-164-34739-225122--,00.html" target="”_blank”">announced</a>
a "toolbox" for local governments to create local ethics policies.
Local government ethics is already governed by state statutes, but
local governments can apparently supplement these rules with local laws and ethics
boards. The toolbox consists of a <a href="http://www.michigan.gov/ag/0,1607,7-164-34391-218890--,00.html" target="”_blank”">website</a>,
whose principal feature is a <a href="http://www.michigan.gov/documents/ag/ModelEthicsOrdDraft_287092_7.pdf&q…; target="”_blank”">Model
Ethics Ordinance</a>, with forms, links
to relevant state statutes, and a guide to the state's Open Meetings
Act.<br>
<br>
I give the Model Ethics Ordinance a C- overall, and a D- on
administration. Its recommended administration consists of a toothless
ethics board selected by the local government's chief executive with
council approval. The board cannot initiate its own complaints and
cannot give advisory opinions. It does not oversee ethics training
(nothing is said about ethics training). And it only has three members,
an inadvisably small number.<br>
<br>
In short, the board is a passive, powerless, politicized, puny body
that is not designed to do the two most important things in government
ethics: advise and train.<br>
<br>
There's also an "ethics ombudsperson," selected by the chief executive,
whose only two stated roles are to recommend to the council that an
advisory opinion be sought from the council's counsel, and to recommend
improvements to the ethics code. I have to assume that whoever had the
idea for an ethics ombudsperson compromised it away into nothing but a
name.<br>
<br>
The one alternative that this model ordinance provides is to have the governing body be the ethics board, and not to have an ethics ombudsperson at all. It all depends on whether the governing body wants the pretense of independent ethics enforcement, or not.<br>
<br>
The ethics provisions are better, but still full of problems. This is
the sort of poorly written code where there are exceptions to recusal (which are
confusing) and a recusal disclosure provision (disclosure of the
reasons for recusal), but no explicit requirement that officials recuse themselves in the first place.<br>
<br>
There is a ban on gifts from prohibited sources, complicated by an
open-ended (to local governments) aggregate dollar limitation as well as a separate daily
limit, and by eight exceptions, including friends, family, and bequests
(from prohibited sources who aren't family members?!).<br>
<br>
Divulging confidential information that benefits no one is included,
even though this is not a government ethics issue, and public resources
can be used to benefit others, just not yourself.<br>
<br>
There are various conflict provisions, some of which are better than
others, and then it says that a state conflict of interest act
"preempts all local regulations of such conduct." Say what?<br>
<br>
The nepotism provision is limited, "personal interest" goes undefined,
annual disclosure includes only financial interests in prohibited
sources, with no mention of real estate ownership, gifts, or the like.<br>
<br>
I would like to joke that this sort of guidance is the blind leading
the blind, but I don't think the attorneys who put this together are
blind. The AG, who is running for governor, wanted to do something, but nothing that would upset local officials he will want to support him.<br>
<br>
Weak government ethics proposals seem to be a
pattern in Michigan. I wrote recently about a <a href="http://www.cityethics.org/node/636">weak Michigan House bill</a>
requiring local governments to set up ethics boards, which apparently
never became law. And just last month I wrote about the very same
AG's extremely <a href="http://www.cityethics.org/content/michigan-disclosure-proposal-doesnt-g…; target="”_blank”">weak
financial and gift disclosure proposal</a>.<br>
<br>
If the AG really wants to help Michigan's local governments, he should
provide a much stronger and better written model ordinance that
emphasizes independent enforcement, ethics training, and advisory
opinions. An ethics ombudsperson should provide ethics advice and
training. An ethics board should have teeth and the ability to initiate
investigations. And all provisions should provide clear guidance.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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