A Proposed Ethics Code for Memphis Falls Short
Three years ago, <a href="http://www.cityethics.org/node/284" target="”_blank”">I
featured Memphis in a blog post</a>, noting that, in the last six
years,
66 government officials, employees, and contractors had been found guilty of
various sorts of government-related crimes. Last year, <a href="http://www.cityethics.org/node/816" target="”_blank”">I noted that the city's
mayor had resigned</a> under a cloud of accusations. In between, the
city and the county (Shelby County) passed ethics codes, but not only
did they give the ethics commissions little in the way of teeth, but no
sign of the commissions actually working could be found on the
respective websites (<a href="http://memphistn.gov/framework.aspx?page=1" target="”_blank”">Memphis</a> / <a href="http://www.shelbycountytn.gov/FirstPortal/appmanager/scexternal/content…; target="”_blank”">Shelby
County</a>).<br>
<br>
Now there is a movement to consolidate city and county, and the proposed consolidated
charter (to be voted on in a referendum next month) contains an ethics code
(attached; see below), which requires an ethics ordinance, following the code's requirements, to be passed
by the council within 120 days.<br>
<br>
Despite ethics problems with past
mayors, the mayor is the one chosen to select the ethics commission
members, with the council's approval (<a href="http://www.memphistn.gov/pdf_forms/EthicsOrd060407.pdf" target="”_blank”">the
current Memphis code</a> allows each council member to select an ethics
commission member, which makes every EC member look like he or she is
in someone's pocket).<br>
<br>
If there is any city in the country where an
ethics commission should be independent from government officials, it's
Memphis. There are two principal reasons not to: a failure to
consider alternatives, or a decision to have a
politicized EC, despite the fact that few will place any trust in it.<br>
<br>
The charter commission told the council that the new charter would have
"the most stringent, binding ethics rules of any government in
Tennessee." That's not saying much, clearly, because the new commission
would have no enforcement power other than making recommendations and
referring matters. The ethics officer can only provide legal advice to
the commission (under <a href="http://www.memphistn.gov/pdf_forms/EthicsOrd060407.pdf" target="”_blank”">the
current Memphis code</a>, the ethics officer can make informal advisory
opinions, as well as report on and prosecute complaints).<br>
<br>
The draft code does require ethics training, although there are no
details, but it requires no disclosure either annually or for
applicants. It also provides for no revolving door provisions, no
whistleblower protection, no hotline, no budgetary requirements, and no
staff beyond the ethics officer. There are also no transparency
requirements, as there are in the Memphis code, although these don't
appear to be followed.<br>
<br>
For a summary of what is in the draft ethics code, read <a href="http://www.memphisdailynews.com/editorial/Article.aspx?id=53189" target="”_blank”">an
article
that appeared in the <i>Daily News</i> on Friday</a>.<br>
<br>
The proposed ethics code falls far short of setting up the sort of
government ethics program Memphis deserves. If the consolidation goes
through, the council could improve the program, but it would feel no pressure to improve on what is being sold as the best there is. The council will also not be
able to take politics out of the ethics program.<br>
<br>
A note on the ethics of the ethics amendment to the charter: The
ethics amendment will be described as follows on <a href="http://www.changememphis.net/sampleballot.pdf">the referendum
ballot</a>:<ul>
This amendment to the charter would come into play if an elected or
appointed official is charged with an ethical or legal violation or
misconduct. In such a case, the official would be suspended, with pay,
until the charges are resolved.</ul>
This makes the ethics code look like it's all about enforcement against
unethical officials,
feeding on the public's desire for retribution, which must be pretty
strong in Memphis. This might be an effective way to get the amendment
passed, from a utilitarian or ends-based ethics viewpoint. But ethics
codes reflect
a rules-based ethics viewpoint, according to which such a description
would be considered manipulative and inappropriate. (See <a href="http://www.cityethics.org/node/516" target="”_blank”">my blog post</a> on the
difference between ends-based and rules-based ethics approaches.)<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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