Ex Parte Communications and More Town Attorney Shenanigans

One way to deal with possible conflicts is to nip them in the bud by
not allowing any personal communications between officials and
interested parties ("ex parte communications"). All communications must
be official, either documentary or at formal meetings or negotiations.<br>

<br>
According to <a href="http://www.palmbeachpost.com/localnews/content/local_news/epaper/2008/1…; target="”_blank”">an
article in yesterday's Palm Beach </a><span><a href="http://www.palmbeachpost.com/localnews/content/local_news/epaper/2008/1…; target="”_blank”">Post</a>,
</span>the new town of Loxahatchee Groves (FL) last year added a
provision to its ethics code (which was the code required by the state)
that reads as follows:<br>
<br>
<div>an elected public officer shall not
engage in communication or discussion with applicants, petitioners, or
their agents or representatives seeking action or other relief from the
Town Council on matters related to a pending application or other
petition.<br>
</div>
<br>
This ex parte communications provision is limited to elected officials,
not including, say, building officials, who deal with applications
regularly.<br>
<br>
One problem with this sort of provision is that personal communication
in no way suggests that a council member is acting in his or her
personal interest; it might just be for the sake of information. The
goal is to prevent even the appearance of impropriety.<br>
<br>
This can cause problems for people who think that unethical conduct
means doing something to help oneself, which is what many people think
in Loxahatchee Groves.<br>
<br>
When thirteen residents asked the council to investigate a council
member's communication with a developer's consultant, citizens put
together a petition defending the council member, arguing
that this was a witch hunt. The leader of the petition drive insisted
that the council member is not corrupt. The council declined to
investigate, even though the council member had admitted to the ex
parte communication.<br>
<br>
As usual, the town attorney seems to have been at the center of the
problem.
First, he gave permission to the council member to have the
communication, even though the ordinance does not allow the town
attorney to provide waivers. (<a href="http://www.palmbeachpost.com/localnews/content/local_news/epaper/2008/1…; target="”_blank”">In
another article</a>,
the town attorney is quoted as trying to have it both ways: "[the town
attorney] said he told Lipp he could talk to Miller, but that 'there is
the code of ethics out there that he needed to be mindful of.'") And
second, the town attorney appears to have failed to educate the public
about the
purposes of the provision, instead talking about matters, such as
intent
and disclosure, which have nothing to do with the provision. The town
attorney muddied the waters so much, it was hard for the council
members to know what was what.<br>
<br>
An ethics code without explanations in the form of comments or a
citizen guide, and without adequate training even for the town attorney
and council members, can lead to big problems. Ex parte communication
provisions can be especially difficult for citizens to understand, but
attorneys should have no problem with them. If only there could be an
all-encompassing ethics provision that could keep town attorneys from
providing misinformation to officials, employees, and the public.<br>
<br>
What I think should have happened is that the council should have investigated the matter, slapped the council member on the hand for violating the ex parte communications provision, and slapped the town attorney harder for giving the council member a waiver he had no right to give and for providing misinformation concerning the provision.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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