State Ethics Mandates for Local Governments

Unfunded Open Meetings Mandate in California
Local governments' protests against unfunded state mandates might, in this time of spending cuts, lead to the undermining of state ethics laws that apply to local governments. The first sign of this is in California, of course.

According to an AP article yesterday, the California legislature has suspended funding for local governments to comply with the Brown Act's open meeting requirements. Governor Jerry Brown (no relation to the Brown Act) wants to extend the suspension through this fiscal year.

The state is required to pay for open meeting compliance due to a lawsuit on unfunded mandates. Claims by local governments were $16.6 million in the 2008-9 fiscal year.

It appears that if a mandate is not funded, the mandate itself is suspended. However, there is disagreement about this.

The question is, Will local governments use this suspension as an excuse not to follow the Brown Act, even though the cost of placing notices on local government websites is negligible? It will be interesting to see which local government leads the way, and what the reaction is. Fortunately, the press really cares about this issue, so failure to provide proper notice of meetings will not go unnoticed.

To save the day, a constitutional amendment has been proposed to require local governments to provide notice about meetings regardless of whether the state pays for it. A Hollywood ending such as this would be appropriate.

Let's hope, however, that California is not in the vanguard on this issue.

State Local Government Ethics Mandates
It's interesting that the same local officials (and local government associations) who attack unfunded state mandates that require local action are often the same officials and associations who try to prevent state ethics programs that apply to local officials. Their biggest argument is "One size does not fit all."

One answer to this argument is, It depends on the size. A basic state ethics program can be applied to all sizes of local governments. It's certainly true that there are enough differences between state and local governments that there should be some differences in the provisions that apply to state and local officials. And there should definitely be a waiver provision, so that small town officials have more leeway in a context where there are bound to be more conflicts.

One good thing about a state ethics program that covers local governments is that it is independent from local control and, therefore, more trusted by the public. Another is a state program has experienced staff and, therefore, a great deal more expertise than all but a few local government ethics programs. Also, of course, there are no questions about unfunded mandates.

One problem is that, when there are hearings, many citizens, officials, and lawyers will have to travel. That is why it's a good idea to have hearings held on a regional basis. A state hearing officer could spend a week in one area, a week in another, so that no one but the hearing officer will have to travel far. I don't know of any state that works this way, but if there isn't one, some state should try it.

The other principal problem with state ethics programs is that, to get local governments to accept them, they are generally weak. And because they are underfunded, they are slow.

And yet state laws often govern transparency and campaign finance. For some reason, it's conflicts of interest that cause the biggest state-local conflicts.

Another way for a state to be involved usefully in local government is to recommend or require an ethics programs or an ethics code. Most states do this in the weakest manner possible, requiring a very limited ethics code and no ethics program. Or recommending the same. It's clear from these weak requirements that the problem for local officials is not unfunded mandates; it's mandates, period.

So how about taking a nudge from the book Nudge by Richard H. Thaler and Cass R. Sunstein (2008), which argues skillfully for default options, since people are lazy or, in this situation, it's in their self-interest to do nothing? A state could require a default ethics program that would take effect by the end of the following year, unless a local government chooses to make changes, none of which can weaken the default program. The state could then recommend a series of additional provisions for larger cities and counties, and any local government that wants a first-rate ethics program.

Michigan did this exactly the wrong way, requiring an ethics board, but then allowing local governments to come up with their own codes, with no restrictions (see my blog post on this).

Kentucky didn't do too much better, mandating ethics codes but providing no oversight. See my blog post on an academic study of the results.

Simply recommending doesn't work. Connecticut came up with decent local government ethics provisions (but no ethics program) back in 1995, ant yet most small towns still have no ethics code, and many of the rest have only the most basic code, with no ethics program. In fact, there isn't a single full-fledged ethics program in the entire state. Selecting the lowest common denominator as the one size that fits all hardly gives the public confidence in officials' interest in dealing responsibly with their conflicts.

Robert Wechsler
Director of Research-Retired, City Ethics

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