Advice on Ethics Advice Falls on Deaf Ears

Anonymous

Thu, 10/11/2012 - 04:58

City Related

Last week, a resident from one of the towns next to mine (Wallingford, CT) called me
for advice regarding his request for an advisory opinion. The
request involved the appropriateness of council members affiliated
with a church participating in a matter that involved funding for
renovation of a wall along the church's parking lot. This is a difficult conflict situation, but some town officials made it much more complicated than it had to be. Not only did
the ethics board, mayor, and council show a lack of understanding of
government ethics, but sadly, none of them seemed to want to gain an
understanding. 
 
When the matter involving the church’s wall first came before the
council, the resident asked council members affiliated with the
church to seek an advisory opinion on whether they had a conflict.
When they failed to do so, he asked the ethics board for an advisory
opinion. The ethics board said it had no authority to provide an
advisory opinion to a citizen. The resident went to the corporation
counsel, who suggested that the council members seek an advisory
opinion. The council members did not do so.

The resident was told to file a complaint, so he filed one seeking
an advisory opinion, since the matter was still before the council and, therefore, council members could still withdraw if the ethics board felt that
was appropriate. The ethics board told the resident to amend the
complaint to state a violation of the ethics code. So the resident
filed a complaint, and the ethics board held a probable cause
hearing. 
 
The resident contacted me the morning of the hearing. I wrote a
letter to the ethics board recommending that it treat the complaint
as a request for an advisory opinion. I gave two reasons. One is
that the council members had sent a very damaging message to the rest
of the town’s officers and employees. The message is that, when an
official has a gray area conflict, even when
someone (a citizen, subordinate, colleague, or supervisor) has
raised the issue, the official has no obligation to seek
advice from the body that is assigned to provide ethics advice. 
 
I pointed out that ethics advice is the single most important part
of a government ethics program, and that officials should be
encouraged to seek advice whenever there is any question regarding a
conflict situation. If a conflict situation as difficult as this one
does not merit a request for ethics advice, then no conflict
situation does. The failure to seek ethics advice, or even allow ethics advice to be given, seriously undermines the purpose of an ethics
program. I said that the ethics board should not allow this to
happen. 
 
Since the matter involving the church wall is still alive, I argued,
an advisory opinion would still allow the council members to deal responsibly
with their conflict situation. This is far better than
focusing on the past and treating the matter as a possible
violation. It is better because an advisory opinion deals with the
matter more swiftly, clears the air in a contentious matter, is less
expensive for everyone involved, and is more in keeping with what
should be the priorities of an ethics program, where enforcement is
a last resort (even most enforcement proceedings are settled). 
 
The second reason I gave was that, were the ethics board to find a
violation, the matter would go to the council for disciplinary
action. It is bad enough, I said, that the ethics board members were
selected by the mayor and approved by the council and, therefore,
are not seen by town residents as wholly impartial (noting that the
best practice is to have ethics board members selected by community
organizations, so that they appear impartial with respect to those
over whom they have jurisdiction). It is much worse to have council
members' own colleagues determine whether and how to penalize them
for an ethics violation. 
 
With respect to the issue of the ethics board's authority, I wrote
that, although the town charter refers only to the fact that the
ethics board is required to provide an advisory opinion when
requested to by a town officer or employee, the charter does not
require that the ethics board reject a request for an advisory
opinion by a town citizen. It has the authority to consider anyone's
request for an advisory opinion; however, it is not required to
consider it. 
 
I concluded my letter by recommending that the ethics board make an
advisory opinion and treat this matter as a way to educate
government officials, as well as town citizens, about the importance
of requesting ethics advice and about the town’s ethics program in
general. 
 
At the hearing, the resident once again requested an advisory opinion rather than an
ethics proceeding. He read part of my letter out loud and gave the
letter to members of the ethics board. Apparently, the ethics board
did not even discuss the issues raised in my letter, but instead
rejected the resident's request. He withdrew his complaint, and the
matter was over. 
 
Independence of Advice Giver 
One good thing that came out of this matter was a discussion
elicited by a local reporter, Laura Richie Salerno, about the
independence of those providing ethics advice. In <a href="http://www.myrecordjournal.com/local/article_e2c3d4dc-1031-11e2-975a-00…; target="”_blank”">an
article in the Meriden Record-Journal</a> last week</a>, Ms. Salerno
reported on how officials in local towns felt about ethics board
member selection and government ethics advice. 
 
The Wallingford mayor responded directly to the statement in my
letter regarding the best practice of having community organizations
select ethics board members. "So what community group has no
conflict with anyone?” he said. One conflict they don't have is
being under the ethics board's jurisdiction. Another is that, unlike
the council, community organizations don't make the decision of how to penalize those
who have been found to have violated the ethics code. 
 
Cheshire's town attorney agreed with me "that politics can play an
unappealing role on ethics boards," recommending that instead of an ethics board, a town
attorney — as long as he or she is not a political appointee — provide ethics advice. 
 
Wallingford's corporation counsel disagreed. “I wouldn’t want this
department to be the be-all, end-all. You can look to seek some
advice from your law department, but they’re not the end decision.” 
 
Meriden's corporation counsel said that, as a political appointee
of the city council majority, the concerns expressed by
Cheshire's town attorney apply to him. And since the city attorney is an
employee, she could be considered to have a conflict of interest
dealing with ethics issues involving another employee. But then he dismissed these concerns, saying, “I don’t
know that there’s ever any really 100 percent absolute way of
preventing any possible political conflict like that. It’s just a
reality. Every community has to do it the way they think works
best for them. In Meriden, this is how we’ve done it and I think
it’s worked well.” 
 
It is great that this discussion, through a reporter, occurred.
But what it shows is that intelligent individuals are willing to
take positions regarding the best way to run a government ethics
program without having considered the range of alternatives. There
are ways to prevent political conflicts in an ethics program, and
there are certainly ways to prevent forum shopping, which occurs
when a corporation counsel, town attorney, ethics board, and city
manager all are willing and able to provide ethics advice. 
 
This discussion should occur in and among cities and counties across the country. However, the participants need to be better informed. That is the principal purpose behind City Ethics' work. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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