Oakland Council Proposes Ethics Reform Charter Amendment

Anonymous

Tue, 07/22/2014 - 04:50

City Related

According to <a href="http://www.sfgate.com/bayarea/article/Oakland-voters-to-weigh-in-on-ant…; target="”_blank”">an
article in the San Francisco Chronicle last week</a>, Oakland's
council approved <a href="https://oakland.legistar.com/View.ashx?M=F&ID=3183581&GUID=461C31CF-83E…; target="”_blank”">an amendment to the city charter</a>, to go before voters in
November, that would increase the authority of the city's ethics
commission and provide it with the funds it needs to do its job.
Congratulations to the council for what is, in some ways, an
excellent reform package. 
 
This ethics reform process began with a <a href="http://www.acgov.org/grandjury/final2012-2013.pdf" target="”_blank”">June 2013
civil grand jury report</a>, which called for giving the city's
ethics commission more authority to enforce ethics laws, and more
resources with which to do it. Then, in May 2014, a working group of
individuals mostly from good government-oriented civic organizations
filed <a href="http://www.cityethics.org/sites/cityethics.org/files/Oakland%20proposal…; target="”_blank”">a
report</a> that made numerous ethics reform recommendations (see <a href="http://www.cityethics.org/content/talk-ethics-reform-oakland-and-saraso…; target="”_blank”">my
blog post on it</a>). The council quickly got to work on a charter
amendment that contains some of the working group's recommendations.

Enforcement 
The EC's range of authority would be greatly increased by this
charter amendment. It would add to its jurisdiction over ethics and
transparency the areas of lobbying and campaign finance
(including a public campaign financing program), which are currently
handled by the city clerk. It would also be given the authority to
enforce state ethics, transparency, and campaign finance laws as
they apply to local officials. Enforcement relating to local officials is the state ethics program's achilles heel, which is why there are so many local ethics programs in the state. 
 
It's good that, for ethics enforcement, the EC would finally be
permitted to impose fines. In fact, it would also not be limited to
the $1,000 limit on fines in the charter. It's not good, however,
that four votes (of a possible seven members) are required for
enforcement (and five for two council-related provisions), because
it is common for ECs not to have a full allotment of members, which
means that when five members attend a meeting, all but one must vote
to enforce, and when the minimum quorum of four attend, a unanimous
vote is required. 
 
Budget Guarantee 
The charter amendment's budget guarantee follows the San Diego
approach of guaranteeing a minimum number of staff positions (in
this case seven) (for other approaches, see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Bud…; target="”_blank”">the
section on budget guarantees</a> in my book Local Government
Ethics Programs). This is a reasonable approach. However, the
council can lower the budget by declaring "extreme fiscal
necessity." 
 
Independent Ethics Director 
The EC's executive director would report directly to the EC,
which is a best practice. But the director would be appointed not
directly by the EC (another best practice), but rather by the City
Administrator from two or three selections made by the EC. This
shouldn't be a problem unless there are not many suitable candidates
and the EC has to compromise by making one of its selections an
individual with ties to the administration. Since high-level
officials are involved in EC member selection, if this individual were hired, it could look like
collusion and, therefore, undermine trust in the EC. It is
preferable that high-level officials not be involved at all in the
selection of EC staff. 
 
Ethics Advice and the City Attorney 
The charter amendment gives the EC authority to provide ethics
advice, but only "in consultation with the City Attorney." The city
attorney also selects one EC member. A city attorney should not be
involved in a government ethics program, especially in a city (as
opposed to a town) and especially with respect to ethics advice (see
<a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Gov…; target="”_blank”">my
discussion of the reasons</a> in my book Local Government
Ethics Programs). If this charter amendment passes in
November, the city attorney should acknowledge that he or she has a
conflict of interest and, therefore, withdraw from participation in
the ethics program. 
 
The EC Member Selection Process 
I'm not crazy about the EC member selection process. It used to be
that three members were selected by civic organizations, and then
appointed by the mayor with the council's approval. These three
members selected the other four members. This fits within the best
practice for EC member selection (see <a href="http://www.cityethics.org/node/770" target="”_blank”">my blog post on this</a>). 
 
According to the charter amendment, the three members would be selected, one each, by the mayor, city
attorney, and city auditor. Each official has to pick people with
different qualifications: someone who has represented a local
civic organization and has been involved in local governance issues;
someone with a background in public policy or public law, preferably
with experience in ethics and transparency; and someone with a
background in either campaign finance, ethics compliance,
whistleblower protection, or transparency technology. 
 
These are excellent requirements for staff members, but not for
members of a citizen oversight commission. EC members do not need to
be professionals; that's what staff are for. It's good that, unlike
some other jurisdictions, these rules do not require that members be
lawyers. But the fact is that most people with these qualifications
will either be lawyers or government employees. These rules greatly
limit who can sit on the EC, and will likely make it hard to find
suitable candidates willing to sit on a body that will require that
they temporarily end their representation of certain clients or
their political activities so that they are not perceived to be
biased. 
 
Even ending activities is often not a sufficient cure for perceived
bias. When, for example, I was asked to sit on my town's ethics
board, I turned the position down because I had recently been
(although was no longer) active in politics (as a citizen, not as a
party member or candidate) and was perceived to be biased against
the party that had run the town before the election. 
 
It is understandable to want the best people for the job, but I
don't think the best EC member is someone with a professional
background in the field. I also think the requirements may lead to
quorum problems down the road. 
 
Some Interesting Provisions 
There are some interesting, original provisions in this charter
amendment. One (which is only a minor modification of one that was
already there) has the EC adjust council members' salaries according
to the consumer price index (any increase over 5% requires voter
approval). Even if the EC's hands are tied, its involvement allows
this issue to be treated as a conflict of interest issue, which is appropriate, but
unusual. 
 
I like that one of the EC's duties is to "study any significant
non-compliance problems or trends with Oakland's campaign finance,
lobbying. transparency, and governmental ethics laws and identify
possible solutions for increasing compliance." This expressly
permits the EC to take initiative by thinking more broadly about the
city's ethics environment and considering (and holding hearings on) alternative approaches to
problems. 
 
There's an interesting provision on the confidentiality of
investigations:<blockquote>

Preliminary review by Commission staff of allegations shall be
confidential to the extent permitted by law, until any of the
following occurs: 
(i) Placement of the item on a Public Ethics Commission meeting
agenda; 
(ii) Passage of one year since the complaint was filed; 
(iii) Action by the Executive Director closing the file without
placing it on the agenda....; or 
(iv) Expiration of the Statute of Limitations.</blockquote>

What's especially good about this provision is (i) it recognizes
that an ethics proceeding is confidential only to the extent
permitted by transparency laws; that is, ethics rules do not
override transparency laws but must be consistent with them (or
local governments must seek exceptions to them); (ii) it
acknowledges that an EC's consideration of whether there is reason
to go ahead with an ethics proceeding (often called a "probable
cause" determination) is not necessarily something that should be done in a closed
meeting; and (iii) it ensures that the expiration of a statute of
limitations or action by EC staff does not mean that a proceeding is
kept hidden forever; instead, it requires that the matter become
public, so that the executive director and the EC can be held
accountable if necessary. 
 
Ethics Amendments 
The most original provision of this charter amendment is also
very valuable. It deals with the future amendment of ethics provisions, which
can lead to backsliding and the undermining of an ethics program.
The provision does two things. One, it requires that the council
expressly find that any proposed change "furthers the goals and
purposes of the ordinance or program in question." The council must
provide specifics substantiating this finding. What is common
is that a council will propose a mixed bag of ethics reforms, some
of which further the ethics program's goals, but others of which
create obstacles to fulfilling these goals. This rule requires them
not only to argue, but to substantiate their argument, that each
provision is a move forward rather than backward. It would be good if this rule were applied to the charter amendment itself. 
 
Second, the provision not only allows the EC to comment on any
relevant council proposal before it is passed, but to have the
proposal submitted to it so that it can publicly approve or
criticize each aspect of the proposal. Here is the language of the
provision:<blockquote>

Amendment of Laws. Prior to enacting any amendments to laws
that the Commission has the power to enforce, the City Council shall
make a finding that the proposed changes further the goals and
purposes of the ordinance or program in question and provide
specifics substantiating the finding. Absent an urgency finding akin
to suspending compliance with the Sunshine Ordinance, amendments to
laws that the Commission has the power to enforce and that are
proposed by one or more members of the City Council shall be
submitted to the Commission for review and comment, prior to passage
of the amendments by the City Council.</blockquote>

Working Group Recommendations That Were Not Accepted 
Among the <a href="http://www.cityethics.org/sites/cityethics.org/files/Oakland%20proposal…; target="”_blank”">working
group recommendations</a> that were not accepted by the council
are express permission for the EC to seek independent legal advice, and
the creation of a solid revenue source for the EC budget (campaign committee
fees were recommended; fees on lobbyists and other sources might
also have been considered). 
 
Horn Tooting 
Last but not least is the following Whereas clause of the charter
amendment:<blockquote>

WHEREAS, A publication of City Ethics, a nonprofit organization that
provides information and resources for local government ethics
programs, written by Robert Wechsler, Director of Research-Retired, provides
best practices recommendations for the establishment and
administration of a government ethics regulatory agency, including
independence, administrative authority to enforce ethics
requirements and impose penalties for violations, a guaranteed
program budget, and oversight of governmental ethics disclosure
requirements;</blockquote>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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