Taking State Laws Into Account When Drafting Ethics Provisions
It is important to take state laws into account when drafting ethics
provisions, especially in local governments that do not have home rule
charters. Here are two situations in the news where this was not done,
and ethics reform has been undermined. Dealing with the state laws from the beginning could have made the ethics codes, and the ethics reform process, far better.<br>
<br>
<b>Numerous Ethics Provisions Declared Illegal in Kane County, IL</b><br>
According to <a href="http://www.dailyherald.com/article/20110621/news/706219811/" target="”_blank”">an
article in today's <i>Daily Herald</i></a>, the former state's attorney for
Kane County, IL felt that <a href="http://www.sterlingcodifiers.com/IL/Kane%20County/index.htm" target="”_blank”">the
county ethics code</a> (Ch. 2, Art III, Div. 3), passed in 2010, was in
several ways illegal. The biggest problem with the code, he said, is
that twelve of its provisions could not be imposed on any elected
official other than the county board members who passed it. These
provisions include bans on pension double-dipping, hiring relatives,
and campaigning for local politicians.<br>
<br>
The powers of elected officials are controlled by the state's internal
control statute, which gives each elected official the right to run his
office independently. Therefore, each of these officials must sign over
authority to whoever is to enforce the ethics code, or even provide
advice regarding it. It is important to take this into account at the
beginning of the ethics reform process, so that all elected officials
are involved throughout and, therefore, feel obliged to have
the ethics provisions apply to their offices.<br>
<br>
The state's attorney also said that the county board had no power to
insist that the ethics adviser not be a politician, a member of any
political party, or a Kane County employee or contractor. It is common
for ethics codes to require ethics commission members and staff not be
local government employees or involved in politics, so that they
appear, and hopefully are, as free of possible conflicts or political
biases as possible. A state law that prevents this should be questioned
and, if possible, changed.<br>
<br>
In addition, according to <a href="http://dailyherald.com/article/20110105/news/701069821/" target="”_blank”">a <i>Daily Herald</i> article from January</a>, the state's attorney deemed the
county's contribution limit illegal because it was lower than the
state's new contribution limit, and the county does not have home rule
authority, which would allow it to have a lower contribution limit.<br>
<br>
It's important for local governments to make sure that their home rule
authority or lack thereof are fully taken into account when drafting an
ethics code. If a provision is considered important enough, it is often
possible for local state representatives to seek an exception from
the state legislature or amend a law to allow local governments to pass
stronger ethics provisions.<br>
<br>
<b>Pennsylvania Supreme Court Strikes Montgomery County Ethics Provision</b><br>
According to <a href="http://timesherald.com/articles/2011/06/21/news/doc4e012b45d534e5340312…; target="”_blank”">an
article in yesterday's <i>Times Herald</i></a>, the Pennsylvania Supreme Court
confirmed <a href="http://caselaw.findlaw.com/pa-commonwealth-court/1535335.html" target="”_blank”">the
Commonwealth Court's rejection</a> of a <a href="http://www.google.com/url?sa=t&source=web&cd=6&ved=0CEMQFjAF&url=http%3…; target="”_blank”">Montgomery
County's ethics code</a> provision because, pursuant to the state’s <a href="http://www.city.pittsburgh.pa.us/mayor/BAC/ethics/08_PA_ethics_act.pdf&…; target="”_blank”">Public
Official and Employee Ethics Act</a>, county commissioners in Second
Class A counties (that is, counties that do not have home rule
authority) do not have the right to supplement the Ethics Act with regard to employees not under the county commission's control, that is, employees who work for other elected officials. In
effect, this is the same conclusion arrived at by the state's attorney
in Kane County, with respect to Illinois law. <br>
<br>
The ethics code provision in question bans about a hundred county
workers from political activities, such as raising money or campaigning
for candidates. For more information, see <a href="http://www.cityethics.org/content/county-commissioner-ethics-authority-…; target="”_blank”">my
2009 blog post</a> on the ban and the suit.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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