When a Department Engages In Ethics Advice and Enforcement
What should an ethics program do when an agency or department takes
ethics advice and enforcement into its own hands? This issue has arisen in
Hawaii County, according to two articles in <i>West Hawaii Today</i>, <a href="http://westhawaiitoday.com/news/local-news/property-tax-issue-ethics-bo…; target="”_blank”">one
from two years ago</a>, <a href="http://westhawaiitoday.com/news/local-news/ethics-board-mulls-departmen…; target="”_blank”">the
other from last week</a>.<br>
<br>
The county's finance department oversees property assessment.
According to the 2012 article, "Employees may hold professional
licenses such as in the area of real estate sales or property
appraisals, but they are banned from using the license for personal
gain anywhere in the county, unless approved in advance by the
finance director and in accordance with the county ethics code."<br>
<br>
The finance director suspended an employee for two weeks without pay
for selling real estate, "after he told his supervisor he wanted to
disqualify himself from assessing a parcel because he had had
conversations with the owner in the past in his role of
private-sector real estate agent." The employee insists he should be
allowed to practice as a realtor as long as he properly withdraws
from participation in matters where he is conflicted. The employee
filed an ethics complaint against the finance director, arguing that
the director violated the ethics code by failing to get an opinion from the
ethics board with respect to the employee's alleged ethics violation.<br>
<br>
Another example of finance department ethics enforcement involved an
employee who, following her supervisor's instructions, set tax
values on a group of properties in her neighborhood, including her
own. A complaint was filed with the county ethics board against the employee, and last month, despite relying on her supervisor's advice, the
ethics board found the employee in violation, and at least one ethics board
member took the finance director to task for making an ethics
investigation and determination.<br>
<br>
Most government ethics programs are given the authority to determine
whether someone under its jurisdiction has violated an ethics
provision. But rarely is it clearly expressed that this authority rests
solely with the ethics program. The language usually consists of a
list of things that an ethics commission is empowered to do, including the
provision of ethics training and advice, and the consideration of
complaints. Even if no other office or body is given authority over
ethics matters (sometimes partial authority is expressly given to
multiple offices or bodies, such as the legislative body, city or
county attorney, inspector general, district attorney, or an
employee's supervisor), rarely is any office or body expressly
prohibited from getting involved.<br>
<br>
The principal problems that arise from this include the provision of
ethics advice by government attorneys (<a href="http://www.cityethics.org/content/many-reasons-why-city-or-county-attor…; target="”_blank”">see
the recent situation in Honolulu</a>) and investigations by
inspectors general or auditors (<a href="http://www.cityethics.org/content/ec-vs-ig-battle-its-better-not-have&q…; target="”_blank”">see
the recent situation in the District of Columbia</a>). Sometimes
agencies have their own ethics rules and programs that, even if they
do not exclude the city or county ethics program, are administered
outside of it. And sometimes, as in Hawaii County, an agency,
department, or supervisor decides to enforce an ethics rule itself,
without even letting the ethics program know, not to mention get involved.<br>
<br>
Never have I seen a provision that allows an ethics commission to
find an official or agency in violation for having offered its own
opinion, judgment, or sanction for violation of a provision of the
government's ethics code or of an alternate agency or department
ethics code or rules of conduct. Therefore, there is little
incentive for others not to get involved with ethics matters. The
one thing I have seen is an ethics commission refusing to accept a
government attorney's ethics advice (or a supervisor's, as in the second Hawaii County matter) as binding on it when the
advisee is a respondent in an ethics proceeding. But this isn't fair to the respondent unless it is clear to everyone that only ethics board advice protects an official or employee.<br>
<br>
This is one reason why it is important for an ethics program to have a monopoly on
training, advice, disclosure, and enforcement. For other reasons, see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Mon…; target="”_blank”">the
appropriate section of my book <i>Local Government Ethics Program</i></a>.
Simply providing an EC with authority over these matters does not
make it clear to others that they have no authority in these areas.
Therefore, it is important to say expressly in the ethics code that the ethics program has a monopoly over this area,
both generally in the policy section at the beginning of the ethics
code, and where the EC's powers are listed. Here is the language
from the <a href="http://www.cityethics.org/content/full-text-model-ethics-code" target="”_blank”">City Ethics Model Code</a>:<blockquote>
The purposes of this ethics code are: ...<br>
(b) To provide clear, consistent guidance with respect to such
standards by clarifying which acts are allowed and which are not,
and by providing the ethics commission with a monopoly on ethics
advice, training, disclosure, and enforcement;<br>
<br>
[In <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC57…; target="”_blank”">the Advisory Opinion section</a>]<br>
No one but the Ethics Commission or Officer may provide ethics
advice; any other advice is not binding on the Ethics Commission and
does not protect the advisee.<br>
<br>
[In <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC75…; target="”_blank”">the Powers and Duties section</a>, place the word "solely" after the
word "to" that begins each subparagraph describing the basic powers and duties
of the ethics commission.]</blockquote>
But whether or not an ethics program has sole jurisdiction over
ethics matters, when an agency or department has a set of special
conflict situations that are difficult to handle responsibly, as
with the Hawaii assessors, the agency and the EC should work
together to draft a general advisory opinion that applies to all
assessors. To deal responsibly with these situations is less an
individual problem (although there will be individual differences,
which will require ethics advice) than an agency problem that should
be dealt with not by the agency alone, but by the agency and the EC
together.<br>
<br>
Hawaii County should not see the problem today as an enforcement
problem, but rather set the rules so that assessors' conflict
situations are dealt with responsibly, with the finance department
and EC in agreement, but with the EC having the final authority to
make determinations and provide ethics advice.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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