Ethics Commissions Should Stick to Their Area of Jurisdiction and Should Stay Out of Politics
A recent decision of the Wilton, NY ethics board (attached; see below)
raises important issues regarding the selection of ethics commission
members, their withdrawal from participation when they have a conflict, and the way an ethics commission handles allegations that are
not covered by the ethics code.<br>
<br>
<b>Allegations That Do Not Constitute Violations</b><br>
The only allegation in the complaint that was covered by <a href="http://www.townofwilton.com/pdfs/EthicsAndDisclosureLaw042007.pdf" target="”_blank”">the
town's ethics code</a> was one involving matters left off an official's
annual financial disclosure form. The other allegations involved
personal conduct, which the ethics board recognized was not covered by
the ethics code. And yet, the board investigated and commented on these
allegations in its decision.<br>
<br>
When someone alleges facts that, even if true, would not constitute a
violation of an ethics code, those allegations should be dismissed
without any investigation or comment. By not doing this, the Wilton
ethics board wasted its time and the town's resources (an attorney was
hired) investigating irrelevant allegations. In addition, it made
comments it had no reason to make, such as that the official's conduct
"was not befitting a representative of the Town of Wilton" and that he
should be a role model. Making such statements are outside the ethics
board's jurisdiction, they personalize the ethics program and escalate
tensions, and they confuse the public about the role of the ethics
board and what government ethics is.<br>
<br>
When you combine the ethics board's inappropriate conduct with the
ethics board selection process, the ethics board made itself a
lightning rod for political tensions, exactly what an ethics board
should never do.<br>
<br>
<b>The Selection of EC Members</b><br>
The ethics board's members are selected by the town board; the ethics
board chair is selected by the town supervisor. According to <a href="http://www.saratogian.com/articles/2011/03/12/opinion/doc4d7ba6c7e3e806…; target="”_blank”">a
letter to the editor of the <i>Saratogian</i></a>, one of the five ethics
board members had, when the complaint was filed, been recently defeated
in a town board race by the respondent, and the ethics board chair was
vice-chair of a town party committee and was being challenged by a
supporter of the respondent.<br>
<br>
<b>Political EC Members</b><br>
Because conflicts of interest are based on relationships, politically
involved citizens, who have personal and political relationships with
town officials, have no place on ethics commissions. This is one of the
many reasons EC members should not be selected by politicians.<br>
<br>
<b>Handling EC Member Conflicts</b><br>
Conflicts based on politics are the last thing EC members should have. But when they do
have conflicts, they should act as a role model in responsibly handling
them.<br>
<br>
Wilton's ethics board handled them very poorly. Both politically involved members participated and voted. In the ethics board's
letter to the town board sent along with its decision in this matter,
it acknowledged the respondent's allegation of bias on the part of the
two ethics board members. Its response is that the facts upon which the
allegation was based were "given their due weight in the deliberation
process." The ethics board "finds" that neither of the members
"exhibited any bias in their review or determination of this matter,
and that the facts do not require their recusal from this matter."<br>
<br>
These statements make it appear that the ethics board has a limited
understanding of conflicts of interest. There is a clear appearance of
impropriety when an ethics board member participates in a matter
involving an official he has recently run against. This fact cannot be
given "due weight," and it is completely irrelevant whether the
individual "exhibited any bias." Conflicts cannot be given due weight,
nor can an individual's apparently unbiased participation in a matter where he has a
conflict somehow change the fact that he should not have participated
at all.<br>
<br>
<b>The Consequences</b><br>
One result of this conduct by the Wilton ethics board was <a href="http://www.saratogian.com/articles/2011/03/12/opinion/doc4d7ba6c7e3e806…; target="”_blank”">a
letter to the editor</a> with the headline "Ethics board members in
Wilton should resign," and a first paragraph that included the words,
"This wasn’t an investigation. It was a political hatchet job."<br>
<br>
Apparently, this letter was written by the respondent's campaign
manager, but no one should be able to write such a letter about an
ethics commission. This letter is the result of a selection process,
the selection of politically involved individuals, the failure to
withdraw from participation, and investigating and then commenting on
matters beyond the board's jurisdiction, all steps done unanimously and
apparently with approval of counsel.<br>
<br>
<b>Recommendations</b><br>
The Wilton ethics board needs to take a long, hard, self-critical look
at its actions. It should consider sending the town board an amended
decision that is consistent with its jurisdiction, and it should
certainly make a public statement clarifying its role, acknowledging
that it should not have investigated or commented on matters outside
its jurisdiction. And finally, it should recommend that its members be
selected by non-political civic groups, not by the town board. An apology might also be in order.<br>
<br>
But even more important, other ethics commissions should learn from this. They should learn how important it is to be and to appear independent and non-political. They should learn how to deal with allegations outside their jurisdiction. They should recognize that, when it comes to their members, they should bend over backwards to deal responsibly with their apparent conflicts. They should get special training in government ethics. And they should hire counsel with expertise in government ethics. Most attorneys do not understand government ethics.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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