Officials' Personal Opinions and the Separation of Aspirational and Enforceable Ethics Provisions
Many local government ethics codes have a provision that, when officials publicly give personal opinions rather than the government's position, requires them to clearly state
that they are not representing the local government.
Here's the one from <a href="http://www.santa-clarita.com/cityhall/agendas/council/print_attachment…; target="”_blank”">the
ethics code</a> in Santa Clarita (CA) where, according to <a href="http://www.the-signal.com/news/article/23715/" target="”_blank”">an article
yesterday in the Santa Clarita Valley <i>Signal</i></a>, the provision has
become an issue.<br>
<ul>
12. Advocacy. Covered persons shall represent the official policies or
positions of the City Council, board, commission, or committee to the
best of their ability. When presenting their individual opinions and
positions, covered persons shall explicitly state they do not represent
their body or the City of Santa Clarita, nor will they allow the
inference that they do.<br>
</ul>
<b>Enforcing the Advocacy Provision</b><br>
That's pretty clear. But when a council member spoke at a rally against
illegal immigration, with language such as "one flag, one language,"
and did not state that he was not representing the city, the city
attorney switched the provision around.<br>
<br>
The city attorney is quoted as saying: "He
did not say he was speaking on behalf of
the council or speaking in an official capacity, so I don't think he
has violated any policy."<br>
<br>
One big problem is that the Santa Clarita ethics code, passed in 2008,
has no formal enforcement mechanism. Here's the enforcement language:<br>
<ul>
Any persons who believe that a City official, employee, or volunteer
has violated this Code of Ethics and Conduct shall report the
allegation to the proper agency.<br>
</ul>
According to the <i>Signal</i>, the city attorney would be charged with
investigating a complaint about the council member's conduct. But he
has already shown that he can't even read the language correctly. He
also referred to the First Amendment in the council member's defense, but he doesn't appear to understand how the First Amendment is involved here.<br>
<br>
Normally, ethics rules require recusal when an official's interests conflict. But due to the First Amendment, no recusal is required with respect to personal opinions, nor is an official prevented from giving his personal opinion. Only disclosure is required, and disclosure does not in any way limit an official's right to state his personal views.<br>
<br>
If quoted correctly, the city attorney has shown that he is either too
biased (he works for the council) or too incompetent to enforce Santa Clarita's ethics code.<br>
<br>
<b>Aspirational and Enforceable Ethics Provisions</b><br>
In any event, much of the ethics code is not really enforceable. Take the first provision:<br>
<ul>
Covered persons will be honest with fellow officials, the public and
others. Covered persons shall be prepared to make unpopular decisions
when the public’s interest requires it. Additionally, covered persons
shall take responsibility for their actions...<br>
</ul>
This is a very nice aspirational provision, but it does not belong with
provisions that are intended for enforcement. Aspirational and
enforceable provisions should be clearly separated in an ethics code,
and the enforceable provisions should be accompanied by independent
ethics enforcement.<br>
<br>
It's time for Santa Clarita to choose what sort of ethics code it
wants, and whether it really wants its city attorney to enforce the
code after what has happened in this matter.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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