Tennessee's Model Ethics Codes Fail to Create Local Ethics Programs

Anonymous

Wed, 01/02/2013 - 06:45

Advisory Opinions

It's been six years since I last wrote about local government ethics in Tennessee. In <a href="http://www.cityethics.org/mc/ci/recusal" target="”_blank”">a January 2007
comment to the forum on recusal</a>, I focused on the fact that
the University of Tennessee's Municipal Technical Advisory Service
(MTAS) (which operates in cooperation with the Tennessee Municipal
League) had prepared <a href="http://www.mtas.tennessee.edu/KnowledgeBase.nsf/0/B6A3B9A0273E0A9385257…; target="”_blank”">a
model municipal ethics code</a> that allowed, but did not require,
officials with a conflict to withdraw from voting. 
 
My eye was caught by <a href="http://www.tennessean.com/viewart/20121226/ASHLANDCITY01/312260087/Mayo…; target="”_blank”">a recent
article in the Tennessean</a> about the mayor of Cheatham County,
who asked the county commission to create an ethics committee as
required by the county's 2007 ethics code. The county commission
voted against creating this committee, even though it would consist
of from three to five county commissioners, with zero to two other
officials. 
 
One county commissioner pointed out that, in its model ethics code, University of Tennessee’s
County Technical Advisory Service (CTAS), the county equivalent of
the MTAS, did not require that counties create an ethics committee.
Therefore, he argued, even though the county commission had passed
an ordinance requiring one, one wasn't required.

Model Ethics Codes 
It's not surprising that a politician would make such a ridiculous
argument. But it is surprising that two university advisory services
would not use the opportunity given them by the state to require
local governments to set up an independent ethics program. Instead,
<a href="http://tn.gov/sos/tec/CTAS%20Ethics%20Policy.pdf" target="”_blank”">the
county service recommended</a> an ethics committee consisting of
at least three county commissioners and two other officials (who
could also be county commissioners), with nothing about training,
advice, or disclosure (except for disclosure of conflicts). And <a href="http://www.tn.gov/sos/tec/MTAS%20Ethics%20Policy.pdf" target="”_blank”">the
city service put ethics administration completely in the hands of
the city attorney</a>. 
 
Actual Ethics Codes 
Neither service required that their models be followed (although something had to be done). But
it's not surprising that the great majority of jurisdictions turned
the model codes into ordinances, word for word. Of the 39 <a href="http://tn.gov/sos/tec/city_ethics.htm" target="”_blank”">cities and towns</a>
from A to B, 35 put ethics administration in the hands of the city
attorney, two did nothing, one put ethics administration in the
hands of an independent attorney selected by the council, and one
created an ethics commission consisting of council members, the
mayor, and other officials, and said nothing about advice (the county model). 
 
The same thing happened with counties. I started from the end of the
alphabet and found that 35 counties called for the all-official ethics
committee recommended by the county service. None of these ethics
codes mentioned ethics advice or training. One county had the county
attorney get involved, and one county did nothing. Only one created
an ethics commission consisting of citizens, appointed by the mayor
and legislative body, but the ethics code still says nothing about
advice or training. 
 
However, two of the three biggest counties have created independent
ethics commissions consisting of citizens rather than officials.
Metropolitan Nashville\Davidson County even has ethics commission
members selected by community organizations. 
 
No Regional Approach 
None of the smaller towns and counties appears to have taken a
regional approach, despite the fact that this approach has been
taken in neighboring Kentucky. It would have been helpful if the
city and county advisory services had pointed out this way of
getting a better ethics program at a lower cost. 
 
The Harm That's Been Done 
What is most harmful about the Tennessee approach to ethics reform
is that the advisory services do not appear to have had any concept
of an ethics program, nor of the value of independence (or the
problems that arise from a politicized ethics program). They were
focused on an ethics code, and a very limited one at that. They
looked at what existed in Tennessee municipalities, rather than
looking at best practices. And they don't appear to have made an attempt to keep
up with changes, even in their own state. 
 
The worst part about requiring an ethics code rather than an ethics
program is that local governments need only pass an ordinance. As
happened in Cheatham County, the one without an ethics committee, there is no
requirement that anything in the ethics code actually be instituted. 
 
At least the city service provided for ethics advice, even if only
from the city attorney. The county service ignored the most
important part of an ethics program. And neither provided for
training or any other role for an ethics committee or city attorney
beyond enforcement. 
 
City Attorney Conflict 
It's worth noting that <a href="http://www.mtas.tennessee.edu/public/web.nsf/Web/Legal" target="”_blank”">the
city service has on its site</a> an opinion letter from the state
Board of Professional Responsibility telling a concerned city
attorney that he has no conflict in investigating and enforcing the
ethics code against officials he represents. The opinion letter
certainly did not satisfy my concerns, and it should not satisfy the
city service either. The conflict is real, even if it is not
recognized by the state courts' disciplinary program. 
 
Something Is Not Necessarily Better Than Nothing 
It is a good idea for the state to create model ethics codes and
requirements that local governments institute the ethics programs
included in such codes. But it's not such a great idea when the
ethics codes are just words without a program, when the few elements
of an ethics program are run by high-level officials, when even
the model ethics provisions are not required, and when even those provisions that are passed do not have to be followed. 
 
Something is not better than nothing. When a legislative body passes
a paper tiger of a code, and its members engage in ethical
misconduct, the public sees them as doubly unethical. What saves
local officials in Tennessee is that they can say they did what the
state and the University of Tennessee required. Their creation of a
paper tiger was not their fault at all. Model codes such as those in
Tennessee are gifts to local
officials who don't want an ethics program and don't want to take responsibility for not having one. Why hire an ethics
officer or create an independent ethics commission, locally or
regionally, when all you have to do is pass a model ethics code? 
 
I wanted to end this blog post by giving credit to the officials in Ashland City, a
town of 3,600 inhabitants, who somehow overcame the lack of
initiative that accompanies model state codes, and provided for the
hiring of an independent, part-time ethics investigator, who would
act as an ethics officer (with the city attorney as "ethics
coordinator"). Unfortunately, outside of the city's ethics code, I
cannot find any mention of this position. It appears that, as with
Cheatham County's unformed ethics committee, no ethics investigator was actually hired. 
 
But it's not just the city and county governments that have
cheathamed their communities. It's the university's city and county
services, the municipal associations they collaborate with, and the
state government that set up the model code system. The good news is that it's not too late to do better. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Tennessee's Model Ethics Codes Fail to Create Local Ethics Programs

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