When an EC Is Dependent
The Colorado ethics commission matter that I discussed in <a href="http://www.cityethics.org/content/total-gift-bans-and-legal-defense-fun…; target="”_blank”">my
last blog post</a> points to yet another reason why ethics
commissions must have their own counsel, and a sufficient budget to
pay that counsel.<br>
<br>
According to <a href="http://coloradoindependent.com/126687/suthers-backs-gessler-effort-to-s…; target="”_blank”">a
January article in the Colorado <i>Independent</i></a>, Colorado's Attorney
General issued an opinion on January 8 supporting the Secretary of
State's request for approval of his legal defense fund, through
either transparency or a blind trust. The ethics commission's draft
opinion opts for transparency. A blind trust in this situation would
require that the public's trust be blind, that is, without any evidence or
reason to believe the Secretary of State would not know about any of the gifts to the fund.<br>
<br>
The AG opinion is problematic, not just because of its conclusions, but also because the AG is the ethics
commission's counsel, just as the city or county attorney is in most local government ethics programs.<br>
<br>
By issuing its opinion, the AG conflicted
itself out of representing the commission in this matter, and possibly in anything to do with the Secretary of State (other matters relating to him are pending). In fact, the reason the
draft advisory opinion has been made public is that the assistant
secretary of state made a request for it, and the commission lacked
counsel to oppose the request. It has a small legal budget.<br>
<br>
In addition, the AG and the secretary of state are members of the
same political party, which leads to the appearance that the AG is
willing to interfere in ethics issues, instead of providing
professional support to a government body, in order to help a
partisan friend.<br>
<br>
The result of the AG's opinion, the assistant secretary of state's
request for a working paper, and the EC's inability to fight this
request is, according to the <i>Independent</i> article, that the secretary
of state's "alleged misuse of a relatively small amount of public
money seems to grow into a larger story about government ethical
standards and oversight each month as new chapters pile onto the
narrative."<br>
<br>
This is the sort of narrative that undermines trust in a government
ethics program. It is the sort of narrative that occurs when an
"independent" ethics commission is not independent. An independent
ethics commission is not selected by or dependent in any way on
officials under its jurisdiction. If an AG wants to state his
opinion, that's fine, because it would have no effect on a truly independent
ethics commission. When the AG is the EC's lawyer, it has a serious
effect, both on the current case and on future cases that look like
they have been manipulated for political purposes. Politics, and
politicians, must be kept out of government ethics as much as
possible in order to ensure trust in an ethics program and in the
fairness of its decisions. And to ensure trust in the politicians
and their government, as well. The goals of a government ethics program cannot be attained without its independence.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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