Problems with Santa Fe County's Aspirational, Yet Enforceable Draft Code of Conduct

What is most remarkable about the <a href="http://www.santafecounty.org/documents/agendas/packet_materials/BCCDraf…
code
of conduct for Santa Fe Count</a>y (NM) is the fact that it was
drafted by the county attorney. It reads as if it were put together by
a citizens group in a community that has lost faith in its
government officials.<br>
<br>

The proposed code starts with a declaration of policy that
includes the statement, "this Ordinance establishes a code of conduct
and establishes minimum standards for ethical behavior." I love the
part about "minimum standards," but not the part about "ethical
behavior."<br>
<br>
There's a big difference between "government ethics" and "ethical
behavior" in the sense used here. This becomes clear in subsection 6A,
"Public Trust" (this is an enforceable provision):<ul>

Elected Officials, Appointed Officials, Employees and Volunteers shall
Act according to the highest principles of representative democracy to
ensure that the County government is worthy of public respect, trust
and support.</ul>

The difference is also important in the first two subsections of section 7, "Conduct
Avoiding Impropriety":<ul>

A. Elected Officials, Appointed Officials, Employees and Volunteers
shall avoid conduct that creates the appearance of impropriety or that
is otherwise unbefitting a public official.<br>
<br>
B. Elected Officials, Appointed Officials, County Employees and
Volunteers shall not knowingly engage in conduct that violates the
rights of others to be treated fairly and with dignity and respect.</ul>

In government ethics, the appearance of impropriety is limited to
improprieties involving conflicts of interest. Here it is extended to
every official and employee's conduct, inside and outside government.
Conduct "unbefitting a public official" is a military term, but unlike
in the military here it is undefined, providing officials with no guidance, but an open season for accusations of unbefitting conduct.<br>
<br>
Treating everyone with dignity and respect is a wonderful aspirational
goal, but it has no place in an enforceable code because it is
undefined and goes far beyond conduct as a government official or
employee. No ethics commission, or official, should have to hear cases
involving family disputes, actions on a sports field, and the like,
which would be under the jurisdiction of the Santa Fe County ethics
board.<br>
<br>
The drafter's ideals seemed to have clouded his sense. For example,
watch how subsection 10B starts off like an ordinary preferential
treatment provision, and then goes well beyond it.<ul>

Elected Officials, Appointed Officials, Employees or Volunteers shall
exercise their duties, powers and prerogatives without prejudice or
favoritism to hire, promote, or simply to reward family members,
relatives, friends, or political supporters, or to hinder or punish
enemies and opponents.</ul>

The first sign that something is a bit off is the word "prejudice,"
which refers to a certain kind of preferential treatment that is
usually handled by personnel departments trained in EEOC matters, not
by ethics commissions that lack this training.<br>
<br>
The second odd term here is "simply to reward" as well as the inclusion
in the list of the undefinable word "friends," the undefined word
"relatives" ("family" is, however, defined), and the completely
inappropriate "political supporters," which would presumably include
anyone who voted for an elected official.<br>
<br>
This problem only increases with the subsection's last clause "to
hinder or punish enemies and opponents." This makes the idea complete,
but who is to decide who is an official or employee's "enemies and
opponents"? In addition, it's hard enough to get officials to recuse
themselves when a friend appears before their body, but it would be
next to impossible to get officials to recuse themselves every time
their decision might be seen as hindering or punishing someone they ran
against, or even any member of the opposing party's committee. And
imagine the situation:  a Republican on a board is opposed to a
particular development in which a member of the Democratic county
committee is involved. In order to get rid of the Republican's
opposition, the Democrat has only to say that he would be hindered for
being an enemy and opponent, and the Republican would be in a tough
position.<br>
<br>
It's worth noting that <a href="http://clerkshq.com/default.ashx?clientsite=Santafe-nm">the city
of Santa Fe has a rather ordinary ethics code</a> (Chapter 1, Section
7). The draft county code could be an attempt to outdo the city, to be
holier than it.<br>
<br>
Another problematic part of the draft county code involves the ethics
board's independence. Each of
the five county commissioners names one ethics board member, and of
these five only one has to be a citizen. This means that four members
of the ethics board could be under the ethics board's jurisdiction,
although none of them could be currently elected officials or party
officers. This provides the board little independence, or the
appearance of independence. It's interesting that there is currently <a href="http://www.santafenm.gov/DocumentView.aspx?DID=6341">a proposed
amendment of the city's ethics code</a> that would change ethics board
appointment, from a setup just like in the proposed county code to
appointment by the mayor with consent of the council.<br>
<br>
There are a lot of good things about the draft county code, but it
needs a
lot of work. Most of all, it needs a clear division between
aspirational and enforceable provisions. First, it should be determined
which provisions are government ethics, that is, conflict of interest
provisions, and which are not.  This is an important distinction
that should, I think, determine what goes in to such a code, but if
other matters are included, they should be clearly set off in one or more
different sections.<br>
<br>
Then each provision, even every
part of each provision, must be looked at with these two questions in
mind:  would it be reasonable for an official or employee to go to
the ethics board with a request for advice about conduct that might be
prohibited or required, and is it
desirable to have what are effectively public trials on matters that
might fall under
the provision? If the answer is not clearly Yes, the provision should
be placed in an aspirational part of the code. See the aspirational
part of the <a href="http://www.cityethics.org/content/full-text-model-ethics-code">City
Ethics Model Code</a> (at the beginning) for an example of what I (and
the
American Society for Professional Administration) consider aspirational
provisions.<br>
<br>
Other blog posts on aspirational vs. enforceable provisions:<br>
<a href="http://www.cityethics.org/content/officials-personal-opinions-and-separ…
Clarita, CA</a><br>
<a href="http://www.cityethics.org/content/problems-ethics-provisions-go-beyond-…
County, GA</a><br>
<a href="http://www.cityethics.org/node/809">Amherst County, VA</a><br>
<a href="http://www.cityethics.org/content/odd-ethics-commission-oakland">Oakland,
CA</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---