EC vs. Corp. Counsel in Honolulu
Many local ethics programs are caught up in an ongoing battle with
the city or county attorney. Usually this battle goes on behind the
scenes. But in Honolulu, due to an unusual grant of budget oversight
to the corporation counsel, this battle has gone public.<br>
<br>
I devoted <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Loc…; target="”_blank”">a
long section of my book <i>Local Government Ethics Programs</i></a> to
the conflicts of interest and other problems that accompany the
participation of city and county attorneys in ethics programs. In smaller jurisdictions, it is
difficult to keep government attorneys completely separate from an
ethics program, although the hiring by an ethics program of a
contract attorney can give the program much of the independence it
needs to be trusted by the public. <br>
<br>
In a city like Honolulu, there is no reason for a city attorney to
be involved in an ethics program in any way. The ethics program
should have a monopoly on ethics advice and should have its own
counsel and its own investigator (or use the Inspector General's
office).<br>
<br>
According to <a href="http://www.dailyjournal.net/view/story/fc43a326cb6a4f7bbf3093344d4d7543…; target="”_blank”">an
AP article</a> and <a href="http://www.civilbeat.com/articles/2013/11/05/20327-is-honolulu-mayor-ki…; target="”_blank”">an
article on the Honolulu Civil Beat site</a> this week, the
Honolulu EC's executive director has complained about interference
with the ethics program by the city's corporation counsel in a
variety of areas. The complaint was set off by corp. counsel's review
of the EC's budget, something that is rarely within a city
attorney's jurisdiction.<br>
<br>
If an ethics program does not have control over how it spends its
budget, officials under its jurisdiction can, say, hamper its
ability to investigate or to bring ethics proceedings, in order to
benefit themselves, their appointing authorities, or their political
colleagues, or simply out of spite for actions taken by the ethics
program against them.<br>
<br>
According to the articles, the corporation counsel has also (1)
begun an audit of the EC's contract with its investigator, and (2) threatened "to withhold money unless internal
communications were shared with attorneys." Such actions and threats, and the
sharing of information with counsel to the
officials under the EC's jurisdiction, seriously jeopardize an
ethics program's independence and hamper its ability to oversee
the conduct of these officials. Without this independence, there
is no reason for the public to trust the decisions of the EC.<br>
<br>
The most serious problem, however, is the corporation counsel's
insistence on providing ethics advice. According to the AP
article, the corp. counsel wrote to the EC "that it is her job to provide counsel to
employees on all matters related to their city duties." And since
she considers such counsel to be protected by attorney-client
privilege (wrongly, I believe; see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Att…; target="”_blank”">the
discussion of this in my book</a>), there is no way for the EC
to know what ethics advice is being given, and no way for it to ensure
that ethics advice is given consistently. This allows officials to forum
shop, that is, go to whoever they think is most likely to give
them the advice they want. This makes a mockery of ethics advice.</span><br>
<br>
If nothing else, the corporation counsel lacks the experience and
knowledge to provide ethics advice. She clearly does not even
appreciate the conflicts of interest a corp. counsel has regarding
involvement in an ethics program. She says what she feels her job
is, but a government ethics professional would explain how she is
dealing with her conflict situation. She would also take into account the fact that conflicts of interest situations
involve the personal interests of the individuals who fill the
public positions her office represents. As soon as it becomes a
matter of their personal interests, these people are arguably no
longer her clients. They are not just officials trying to follow
laws. They are individuals caught between their personal interests
and the public interest, and it is the EC that is charged with
advising and enforcing the laws that apply to such conflicted individuals.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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