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When a Department Engages In Ethics Advice and Enforcement
Tuesday, February 18th, 2014
Robert Wechsler
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 West Hawaii Today, one
from two years ago, the
other from last week.
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."
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.
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.
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.
The principal problems that arise from this include the provision of ethics advice by government attorneys (see the recent situation in Honolulu) and investigations by inspectors general or auditors (see the recent situation in the District of Columbia). 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.
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.
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 the appropriate section of my book Local Government Ethics Program. 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 City Ethics Model Code:
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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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."
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.
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.
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.
The principal problems that arise from this include the provision of ethics advice by government attorneys (see the recent situation in Honolulu) and investigations by inspectors general or auditors (see the recent situation in the District of Columbia). 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.
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.
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 the appropriate section of my book Local Government Ethics Program. 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 City Ethics Model Code:
The purposes of this ethics code are: ...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.
(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;
[In the Advisory Opinion section]
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.
[In the Powers and Duties section, place the word "solely" after the word "to" that begins each subparagraph describing the basic powers and duties of the ethics commission.]
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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