Problems with Santa Fe County's Aspirational, Yet Enforceable Draft Code of Conduct

What is most remarkable about the proposed code of conduct for Santa Fe County (NM) is the fact that it was drafted by the county attorney. It reads as if it were put together by a citizens group in a community that has lost faith in its government officials.

The proposed code starts with a declaration of policy that includes the statement, "this Ordinance establishes a code of conduct and establishes minimum standards for ethical behavior." I love the part about "minimum standards," but not the part about "ethical behavior."

There's a big difference between "government ethics" and "ethical behavior" in the sense used here. This becomes clear in subsection 6A, "Public Trust" (this is an enforceable provision):

Elected Officials, Appointed Officials, Employees and Volunteers shall Act according to the highest principles of representative democracy to ensure that the County government is worthy of public respect, trust and support.

The difference is also important in the first two subsections of section 7, "Conduct Avoiding Impropriety":

A. Elected Officials, Appointed Officials, Employees and Volunteers shall avoid conduct that creates the appearance of impropriety or that is otherwise unbefitting a public official.

B. Elected Officials, Appointed Officials, County Employees and Volunteers shall not knowingly engage in conduct that violates the rights of others to be treated fairly and with dignity and respect.

In government ethics, the appearance of impropriety is limited to improprieties involving conflicts of interest. Here it is extended to every official and employee's conduct, inside and outside government. Conduct "unbefitting a public official" is a military term, but unlike in the military here it is undefined, providing officials with no guidance, but an open season for accusations of unbefitting conduct.

Treating everyone with dignity and respect is a wonderful aspirational goal, but it has no place in an enforceable code because it is undefined and goes far beyond conduct as a government official or employee. No ethics commission, or official, should have to hear cases involving family disputes, actions on a sports field, and the like, which would be under the jurisdiction of the Santa Fe County ethics board.

The drafter's ideals seemed to have clouded his sense. For example, watch how subsection 10B starts off like an ordinary preferential treatment provision, and then goes well beyond it.

Elected Officials, Appointed Officials, Employees or Volunteers shall exercise their duties, powers and prerogatives without prejudice or favoritism to hire, promote, or simply to reward family members, relatives, friends, or political supporters, or to hinder or punish enemies and opponents.

The first sign that something is a bit off is the word "prejudice," which refers to a certain kind of preferential treatment that is usually handled by personnel departments trained in EEOC matters, not by ethics commissions that lack this training.

The second odd term here is "simply to reward" as well as the inclusion in the list of the undefinable word "friends," the undefined word "relatives" ("family" is, however, defined), and the completely inappropriate "political supporters," which would presumably include anyone who voted for an elected official.

This problem only increases with the subsection's last clause "to hinder or punish enemies and opponents." This makes the idea complete, but who is to decide who is an official or employee's "enemies and opponents"? In addition, it's hard enough to get officials to recuse themselves when a friend appears before their body, but it would be next to impossible to get officials to recuse themselves every time their decision might be seen as hindering or punishing someone they ran against, or even any member of the opposing party's committee. And imagine the situation:  a Republican on a board is opposed to a particular development in which a member of the Democratic county committee is involved. In order to get rid of the Republican's opposition, the Democrat has only to say that he would be hindered for being an enemy and opponent, and the Republican would be in a tough position.

It's worth noting that the city of Santa Fe has a rather ordinary ethics code (Chapter 1, Section 7). The draft county code could be an attempt to outdo the city, to be holier than it.

Another problematic part of the draft county code involves the ethics board's independence. Each of the five county commissioners names one ethics board member, and of these five only one has to be a citizen. This means that four members of the ethics board could be under the ethics board's jurisdiction, although none of them could be currently elected officials or party officers. This provides the board little independence, or the appearance of independence. It's interesting that there is currently a proposed amendment of the city's ethics code that would change ethics board appointment, from a setup just like in the proposed county code to appointment by the mayor with consent of the council.

There are a lot of good things about the draft county code, but it needs a lot of work. Most of all, it needs a clear division between aspirational and enforceable provisions. First, it should be determined which provisions are government ethics, that is, conflict of interest provisions, and which are not.  This is an important distinction that should, I think, determine what goes in to such a code, but if other matters are included, they should be clearly set off in one or more different sections.

Then each provision, even every part of each provision, must be looked at with these two questions in mind:  would it be reasonable for an official or employee to go to the ethics board with a request for advice about conduct that might be prohibited or required, and is it desirable to have what are effectively public trials on matters that might fall under the provision? If the answer is not clearly Yes, the provision should be placed in an aspirational part of the code. See the aspirational part of the City Ethics Model Code (at the beginning) for an example of what I (and the American Society for Professional Administration) consider aspirational provisions.

Other blog posts on aspirational vs. enforceable provisions:
Santa Clarita, CA
Fayette County, GA
Amherst County, VA
Oakland, CA

Robert Wechsler
Director of Research-Retired, City Ethics

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