The Way to Deal with Baltimore's Ethics Director's Conflict Situation
After <a href="http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-aisen…; target="”_blank”">Common
Cause questioned the fitness of Baltimore's government ethics
director</a> for his job, <a href="http://www.baltimoresun.com/news/opinion/bs-ed-ethics-adviser-letter-20…; target="”_blank”">an
opinion piece</a> called for him to be fired, and <a href="http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-overs…; target="”_blank”">a
<i>Sun</i> article</a> appeared under the headline "Ethics oversight board hasn't
met in years," finally a rational voice has spoken out: <a href="http://www.baltimoresun.com/news/opinion/editorial/bs-ed-aisenstark-201…; target="”_blank”">a
Baltimore <i>Sun</i> editorial posted yesterday afternoon</a>.<br>
<br>
What is all the fuss about? Avery Aisenstark, the longtime director of
Baltimore's ethics board, appears to have done an isolated piece of
legal research for a lawyer who was working for a group that is
challenging certain zoning decisions. The group consists of local
developers. But the ethics director did not have any contact with
the group or with any of its developers.<br>
<br>
Aisenstark should have anticipated how this would appear (and be
twisted) if it got out, and therefore turned down the job. But as I pointed
out in <a href="http://www.cityethics.org/content/government-ethics-professionals-also-…; target="”_blank”">my
last blog post</a>, it is difficult for anyone to deal with his
own conflict situation, even a government
ethics professional. And it is also the unfortunate case that most
people, when they feel unjustly attacked, will defend themselves
rather than admit having made an error (see <a href="http://www.cityethics.org/content/being-wrong-i-summer-reading" target="”_blank”">my
review of the book <i>Being Wrong</i></a>).<br>
<br>
<b>The Appropriate Oversight</b><br>
What is important here is first to determine what occurred (before
calling people unfit or calling for them to be fired) and how
serious an offense it was. From what I can tell, what occurred was
minor and, if not twisted, would not appear to make Aisenstark in
any way unfit for his job.<br>
<br>
Second, it must be determined who should provide the disciplinary
review. The ethics board is in the best position to do this (if it
involved a serious or complex matter, the ethics board should turn
the investigation over to a special investigator). Baltimore's
ethics board should take a page from the book of its neighbor
Philadelphia's ethics board, which <a href="http://www.cityethics.org/node/768" target="”_blank”">dealt with a minor
matter</a> involving its director back in 2009.<br>
<br>
It is true that the Board of Legislative Reference (the board that
hasn't met in years) is the body that appointed Aisenstark, and the
only body that can fire him. But this does not mean that, since that
board has no other role and, therefore, never meets, the ethics
director has no oversight. The ethics board can reprimand him,
possibly fine him, and certainly recommend to the Board of
Legislative Reference that he be suspended or fired. Oversight does
not require final authority. The <i>Sun</i> editorial is right to say, "The
ethics board needs to look into the facts and to consider the
implications of the matter, and it needs to do so with the advice
and guidance of someone outside of Mr. Aisenstark's department."<br>
<br>
If I were on the ethics board, I would move to quickly discuss this
matter and reprimand Aisenstark. And I would also discuss whether an
ethics director should be providing private legal services,
especially to attorneys, since they are likely to represent those
who do business with the city. If such services are allowed, there
should be clear limits on whom an ethics director or other staff member may work for, directly or
indirectly, and immediate disclosure to the ethics board of all work
taken on.<br>
<br>
The ethics board should also discuss how it would deal with a more serious conflict situation involving its staff or one of its members, and also whom its staff should turn to for independent ethics advice (perhaps an ethics director in a nearby city would be the solution to both answers; there could be a two-way arrangement).<br>
<br>
<b>Making the Ethics Program Independent of Those Over Whom It Has Jurisdiction</b><br>
But what is most important comes next. The editorial focuses on the
failure of the Board of Legislative Reference to provide effective
oversight. But this board was not constituted so as to provide oversight; it was only
constituted to select an ethics director independently of the city
government (although it includes the mayor and a council member, it
also includes the president of Johns
Hopkins University, the deans of the University of Maryland
and University of Baltimore
law schools, and the director of the Enoch Pratt Library). In other
words, it is very similar to the sort of board <a href="http://www.cityethics.org/node/770" target="”_blank”">I have long argued
should be created</a> to select the members of <i>an ethics board</i>.<br>
<br>
The long-term solution to this problem is clear and easy. The Board
of Legislative Reference should remain (but without the mayor or the
council member, and with a new title), but its role should be to
select not the ethics director, but instead the ethics board. The
independent ethics board would then select and oversee the ethics
director.<br>
<br>
The result will be an ethics board independent of those over whom it has jurisdiction. It would be seen by the public as
having no relationships with high-level officials, and its director would be answerable only to it. In other words,
something like what exists in Atlanta and Miami-Dade County.<br>
<br>
<b>And Real Ethics Reform</b><br>
And while making the ethics board more independent, Baltimore's
council should also take a fresh look at the city's ethics program
(see <a href="http://www.cityethics.org/content/not-much-get-excited-about-baltimores…; target="”_blank”">my
criticism of the most recent ethics reforms</a> in 2010). The
ethics board should get involved in recommending reforms, not just
piecemeal, but as part of a vision of the sort of comprehensive and
effective ethics program Baltimore deserves (with the budget
necessary to run it).<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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