Summer Reading: Richard Painter on Ethics Reform II

This is the second of three posts on how Richard W. Painter's recommendations for federal ethics reform in his book, <a href="http://www.amazon.com/Getting-Government-America-Deserves-Difference/dp…; target="”_blank”"><i>Getting
the Government America Deserves: How Ethics Reform Can Make a
Difference</i></a> (Oxford U.P., 2009), may be applied to local government ethics programs.<br>
<br>
<b>Rulemaking</b><br>
At the federal level, many ethics rules are made by the ethics
program rather than by Congress. Painter wrote, "In an area such as
government ethics, in which lawmakers themselves have so many
competing pressures and conflicts of interest, robust administrative
rulemaking is even more important."<br>
<br>
But this kind of rulemaking scarcely exists at the local level. Many
ethics commission are able to draft their own rules of procedure
(although most fail to do so), and these can alleviate many of the
unforeseen consequences of poorly written ethics provisions. But the
reform of ethics provisions is usually left to local legislators, in
conjunction with the city or county attorney. It doesn't have to be
this way.<br>
<br>

Even if it is not given rulemaking authority, an ethics commission is well situated to make
recommendations to the local legislature for changes to the ethics code. An EC needs to recognize that it
might take years to be successful with more controversial reforms,
but if the EC is persistent, a scandal will soften legislators up at
some point and make it more likely that even these more controversial reforms will become
accepted. Without a scandal, the best way to achieve reasonable reform is to
educate officials about government ethics, so that insteading of fearing it, they understand it and see its value to them.<br>
<br>
Painter has a reasonable warning. After noting that the head of the
OGE, the federal government's ethics program, is a political
appointee (as are most local government EC members), he says that,
"Allowing an agency headed by a political appointee to
administratively alter statutory mandates binding on other political
appointees may not look good, even though the power is not being
abused." Here is a yet another argument for a truly independent
ethics commission.<br>
<br>
<b>Advisory Boards or Representative Committees</b><br>
Painter advocates something I've long been arguing for: instead of having
those in a position to benefit from government decisions sit on
government advisory boards, whose recommendations are often become
legislation, the government should form representative committees
whose members have no fiduciary relationship with the government or,
put another way, are wearing only the hat of an industry
representative. See <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Adv…; target="”_blank”">the

section of my book <i>Local Government Ethics Programs</i> on this topic</a>.<br>
<br>
<b>Ethics Advice Beyond the Ordinary</b><br>
Painter notes that a government makes many decisions where expert
input relating to government ethics could be very useful. Government
ethics advice beyond the narrow limits of an ethics code can improve
the decision-making process. Ethics officers should offer their
input, and officials should include them in important decisions, in
such areas as hiring and firing, administration transitions,
preparing officials for testimony in non-ethics investigations, and
the preservation of records. "An institutional framework that
excludes ethics officials from such deliberations is not likely to
preserve the agency's overall fealty to the fiduciary principle," he wrote.<br>
<br>
<b>Cover-ups</b><br>
Painter has a valuable suggestion for preventing cover-ups of
ethical misconduct. The first thing is to recognize that those in an administration or
agency have a cognitive bias toward concealment of wrongdoing. Once
this is acknowledged, administrations and agencies can try to involve outsiders in ther
discussion of how to handle reports of misconduct. Those who are not
responsible for or close to those responsible for misconduct are more likely to be honest about it, to
oppose concealment, and to explain how damaging concealment can be,
to the administration or agency, to its leaders, and to the public trust. Painter
recommends that these outsiders be career officials. I would add
that former ethics officers, or ethics officers from nearby
jurisdictions, could also provide helpful input.<br>
<br>
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 1 of this three-part post</a><br>
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 3 of this three-part post</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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