A Stamford Ethics Controversy Involving Time Limits, Enforcement of Policy Declarations, and More

Anonymous

Mon, 09/27/2010 - 08:05

City Related

Update: October 8, 2010 (see below) 
 
There's a fascinating ethics controversy going on in Stamford, CT which
raises a number of issues involving time limits, the enforcement of declarations of policy, intimidation, and the roles of ethics commissions and inspectors general.

Time Limits 
<a href="http://www.cityofstamford.org/filestorage/25/64/1168/2990/122090/Codeof…; target="”_blank”">Stamford's
Code of Ethics</a> requires that a decision on probable cause be made
within 60 days of receiving a complaint. Only under "extraordinary
circumstances" may this period be extended, and then only for another
60 days. Considering how many impediments there can be to an
investigation, including problems obtaining information, problems
getting a quorum for a meeting to decide on probable cause or vote for
an extension, and actions brought by respondents, such time limits are
unreasonable. Guidelines are preferable. 
 
There is the also the question, What happens if the time limits aren't
met? According to <a href="http://www.stamfordadvocate.com/default/article/Lawyer-asks-city-to-thr…; target="”_blank”">an
article in the Stamford Advocate</a>, one respondent asked to have the
complaint against him dismissed due to a failure to properly extend a
time period. 
 
Time limits such as this appear in ethics codes for two reasons. One is
to ensure that ethics proceedings are not drawn out. This is the reason
that the City Ethics Model Code contained strict time limits for the
hearing process, although not for the investigation process. But after
more thought, we decided to ease the time limits and the extension
process, because of the many reasons extension can become necessary and
the many ways in which a respondent can take advantage of time limits
in order to seek the dismissal of a complaint. (<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC82…; target="”_blank”">Click
here</a> to read the City Ethics Model Code provision.) 
 
The other reason for strict time limits is to make it difficult to
actually have an ethics enforcement process work. Time limits are one
of the ways in which an ethics code that appears to be serious about
enforcement can actually undermine enforcement via what appear, to
non-lawyers, to be reasonable provisions. As long as delay is a
principal legal tactic and volunteer boards have trouble obtaining
information, meeting, and making decisions, time and extension limits
should not be too strict. 
 
Declarations of Policy 
Stamford's ethics code contains a three-paragraph Declaration of
Policy. Such policy declarations usually state the policies behind the
ethics code, such as ensuring public trust. Here is the essence of the <a href="http://www.cityethics.org/content/full-text-model-ethics-code" target="”_blank”">City
Ethics Model Code</a> purposes provision:<ul>

The purposes of this ethics code are:
(a) To establish standards of ethical conduct - especially those
dealing with conflicts between personal interests and those of the city
- for city officials, employees, consultants, candidates, and those who
do business with the city;
(b) To provide clear guidance with respect to such standards by
clarifying which acts are allowed and which are not;
(c) To promote public confidence in the integrity of our city's
governance and administration;
(d) To provide for the consideration of potential ethical problems
before they arise, to minimize unwarranted suspicion and to enhance the
accountability of our city's government to city residents; and
(e) To provide for the fair and effective administration and
enforcement of this code.</ul>
What is important about this list is that nothing is required. No one
would consider these enforceable provisions. 
 
The Stamford policy declarations are not so clearly unenforceable.
Here's the one that is at issue in the current matter:<ul>

Officers and employees of the City of Stamford must refrain from
personal, business, financial and political activities that can
reasonably be interpreted to reflect adversely on the individual's
fidelity and impartiality, having regard for the nature and scope of
their official responsibilities.</ul>

The words "must refrain from" make this sound like an enforceable provision. And that's how the ethics
board sees it, as well. According to <a href="http://www.ctpost.com/news/article/Stamford-board-finds-cause-in-second…; target="”_blank”">an
article in the Connecticut Post</a>, the board of ethics found
"sufficient evidence that all three respondents engaged in activities
outside the nature and scope of their official responsibilities and
that such conduct can reasonably be interpreted to reflect adversely on
their fidelity and impartiality." And the board of ethics found
probable cause that the respondents "engaged in a process of targeted
inquiry" that "blurred the lines of their official authority and was
inspired by personal, punitive motives." 
 
"Fidelity and impartiality" and "nature and scope of their official responsibilities" come right out of the policy declaration,
and "official authority" appears to be a reference to "scope of their
official responsibilities." 
 
However, the respondents aren't saying that this policy declaration is
not enforceable. Two of them (elected members of the city's Board of
Finance) are arguing that the code is unconstitutionally vague and that
it impinges on their freedom of speech by limiting their communications
with city employees. 
 
Policy declarations are by their nature vague. That is why they should
not be enforced. But it is a common error of ethics commissions to try
to enforce them. City counsel should recommend that they do not enforce
them. 
 
The Respondents' Conduct 
The respondents appear not to be simply the victims of a slow ethics
process or the inappropriate application of policy declarations. One,
they themselves have sought extensions. 
 
Two, instead of correctly identifying the problem, according to <a href="http://www.stamfordadvocate.com/default/article/Board-GOPs-facing-ethic…; target="”_blank”">an
article in the Stamford Advocate last Friday</a>, they have induced the
Board of Finance, in a hastily organized special meeting that did not
include members of the opposition party, to hire special counsel.
According to one of the respondents, the purpose of the hiring is to
obtain a "legal opinion from an impartial legal scholar to evaluate the
city ethics code and decide whether it is constitutional, because it
restricts the First Amendment right of elected officials to ask
questions." Another respondent "intends to seek an opinion only to give
board members guidance about their rights and powers as elected
officials under the city Charter and state statutes. Though he said it
is necessary to hire someone who specializes in constitutional law, the
intent is not specifically to evaluate the validity of the ethics code." 
 
If the second respondent is accurately stating the purpose, why make the decision in
a special meeting where the opposition party is not present and where
there are questions about the legality of the meeting? When you are
accused of, and deny, ethical misconduct, why act in an apparently
unethical manner? 
 
Three, what is especially troubling is that the two respondents voted on
hiring counsel, even though the city law office told them multiple
times that it might not be proper to do so, considering their personal
involvement in ethics board proceedings. They insist that the
complaints are false and partisan, and deal with vague provisions, and
yet they openly ignore a clear conflict of interest. And this problem
is likely to continue if the respondents have anything to do with
selecting, overseeing, or discussing the conclusions of the special
counsel. 
 
Intimidation 
The problem at the center of this matter is intimidation. According to <a href="http://www.stamfordadvocate.com/default/article/Longtime-fight-comes-in…; target="”_blank”">a
Stamford Advocate editorial on Friday</a>, "to a sizeable bloc of
residents in the city, [one of the respondents is] the taxpayers' most
dedicated financial watchdog.
To many others, particularly in government, he's a bully." 
 
The editors say that this case reflects what has been said for
years: "In this corner: [the respondent] at times abuses his
power in pursuit of personal vendettas. In that corner: People who wish
he'd stop poking around, or who just don't like him, accuse him of all
kinds of things that aren't grounded in reality." 
 
The complaint alleges a "campaign of harassment and retaliation." The
other respondent,<a href="http://www.stamfordadvocate.com/default/article/Finance-Board-member-Et…; target="”_blank”">
in an op-ed piece in the Stamford Advocate on Friday</a>, defends this
harassment ("I could not be more proud") and totally ignores the
allegation of retaliation. 
 
<a href="http://www.cityethics.org/content/intimidation-%E2%80%94-worst-offense-…; target="”_blank”">As
I've written before</a>, intimidation of subordinates and of employees
by elected officials is the worst offense in government ethics. But it
is not very easy to prohibit in an ethics code, because it is hard to
describe, hard to prove, and hard to enforce without allegations, as in
this matter, of first amendment free speech problems. 
 
But the arrogance and personal viciousness that these respondents
defend, in this matter, as a "relentless fight to eliminate government
waste" is a major force in scaring citizens away from involvement in
local government. It is a misuse of office to publicly spew venom at
other government officials, even if the cause is a good and just one.
And it contributes to a poor ethical environment. 
 
Personally investigating officials and spewing venom is meant for
citizens, not for officials. When you are elected, you're supposed to
follow official means, just as the respondents want the board of ethics
to follow official means. If you believe the board of finance has the
power to investigate waste, ask the board to investigate waste; don't
do it yourself. If you do, then you have to expect personal retaliation. 
 
This is a misuse of office that is difficult to deal with in a legal
process. If a board member gets out of line, the board should do the
responsible thing and censure him and make it clear to all members that
this sort of conduct is not acceptable. But it's rare for this to happen, especially to a chair and vice-chair, as in this matter. 
 
What is happening in Stamford is common. When a legal process is
employed, arrogant officials don't make an attempt to work it out. They
attack right back in any way they can. This escalates rather than
resolves the controversy. And, of course, the ethics board is
intimidated just as the other officials say they were. 
 
Resolution 
It's unlikely
that the ethics board can bring a widely accepted resolution to this
matter, or even that they should. There is only one responsible resolution, which has three parts. One, the respondents should stop defending
themselves and instead apologize for going beyond
what was appropriate to their legitimate attempt to cut waste in
government. 
 
Two, as chair and vice-chair, they should work to establish clear guidelines for communications by individual members of the board of finance. 
 
Three, Stamford should hire an inspector
general to investigate waste. IGs are neutral
professionals with the appropriate training and responsible,
impersonal approach to government waste. Elected officials should do no
more than present matters to a professional office, and then turn
the investigative report into policy. 
 
Elected boards of finance, which are the norm in Connecticut, are not
appropriate investigative bodies, especially in a city the size of
Stamford (about 117,000 pop.). And individual members of such a board
are certainly not appropriate investigators. It's time for Stamford to
establish an independent inspector general office. 
 
Update: October 8, 2010 
According to <a href="http://www.stamfordadvocate.com/local/article/Lawyer-asks-board-to-dism…; target="”_blank”">an article in today's Stamford Advocate</a>, one of the board of finance members made a motion to dismiss, effectively using the argument above (in the Declarations of Policy section), that (in the words of the motion) "declarations of policy and preambles may not be treated as substantive enforceable parts of the statute." This provides the ethics board with an opportunity to correct its error. 
 
Unfortunately, the respondent went on to argue that the complaint was, therefore, frivolous, which is itself a frivolous thing to say, because the board made the same mistake, and its members were certainly not being frivolous. This accusation of frivolity does not bode well for the three-part solution I recommend above. It suggests that the board of finance member is seeking vindication, not a long-term solution to the problem. In other words, it's about him, not about the people he represents. I hope I'm wrong. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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A Stamford Ethics Controversy Involving Time Limits, Enforcement of Policy Declarations, and More

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