Advice on Advisory Opinions
Again and again, local government officials say that there is no need
for an improved ethics program in their town because no one is filing
complaints. If there were ethical problems, they argue, there would be
lots of complaints. But complaints are not an indication of the need
for a better government ethics program. The reason is that no one files
a complaint when they do not expect a fair hearing of the complaint
(most basic programs do not have a body that is considered independent
and neutral).<br>
<br>
In any event, complaints are not central to an ethics program. What is
central to an ethics program are advisory opinions.<br>
<br>
When few people are requesting ethics advice from an independent ethics
officer or other ethics commission staff, that is an indication that
the ethics program is not working well. Trained employees and officials
in a good organizational ethics environment will want to be sure they
are acting professionally when dealing with potential conflicts,
offered gifts, and the like.<br>
<br>
It should come as no surprise that some of the best ethics programs
have the largest numbers of requests for advisory opinions. I was
reminded of this yesterday when an advisory opinion survey done for
last December's COGEL conference was sent to me. Here is a list of the
responding ethics commissions that fielded over 200 requests for
advisory opinions in 2008 (11 of 72 commissions):<br>
<ul>
Honolulu<br>
New York City<br>
Seattle<br>
California<br>
Connecticut<br>
Hawaii<br>
Indiana<br>
Massachusetts<br>
New York state FOI<br>
Ohio<br>
Virginia<br>
</ul>
These commissions give informal advice over the phone and/or via
e-mail, as well as formal written advisory opinions (either by staff
alone or with the approval of the commission).<br>
<br>
Here is some advice on advisory opinions from those who have a great
deal of experience giving advice.<br>
<br>
From Honolulu:
Use the KISS approach. An
opinion isn’t a law review article. If
your commission members don't understand it, public servants certainly
won't.<br>
<br>
However (from NJ), When
you’re writing an advisory opinion, always keep in mind that this could
be the
one that goes up on appeal.<br>
<br>
From Canada:
Always indicate that your
opinion is based on and only applicable to information given.<br>
<br>
And from Texas:
Brainstorm
about unintended consequences especially with respect to opinions that have broad
applicability. People will dissect the opinions in search of potential
loopholes.<br>
<br>
From Alberta:
Use an internal database of opinions to find
precedent rapidly. This ensures easy access
to the ethics program's "corporate memory."<br>
<br>
From RI: When
the answer to a request for advice is clearly going to be "no," the
person asking for advice is offered the
chance to withdraw the request, conform to our informal opinion, and
recuse. This eliminates
about a quarter of requests for formal advisory opinions.<br>
<br>
From FL: Always restate the facts in the opinion, so that it's
very clear what facts were relied on in giving the advice. Also,
sometimes you have to go beyond what is requested, because the official
is asking the wrong question.<br>
<br>
From VA: Keep log sheets of all telephone requests and opinions,
and keep records of all e-mail requests and opinions. Enter them into a
database to keep opinions consistent.<br>
<br>
From OH and PA (this advice is more valuable than you'd think):
Develop a style manual and boilerplate language on each issue to make
sure opinions are
stylistically uniform.<br>
<br>
Here are some interesting ideas. Connecticut puts draft written
opinions online for comment before the EC meets to discuss them. Iowa
issues opinions without a request when it wants to announce policies.<br>
<br>
And here's some more advice from my notes on the panel discussion held
at last year's COGEL conference. If the facts don't seem right or you
need more facts, go back to requester with questions. If the request
came by phone, and it's not something simple and easily answered right
away, e-mail the statement of facts to the requester and ask it to be
confirmed before providing an opinion.<br>
<br>
Related blog posts:<br>
<a href="http://www.cityethics.org/node/786" target="”_blank”">Model Advisory Opinion and
Links to Major Local and State Advisory Opinions</a><br>
<a href="http://www.cityethics.org/node/651" target="”_blank”">Citizens and the Advisory
Opinion Process</a><br>
<a href="http://www.cityethics.org/mc/ad/advis" target="”_blank”">Advisory Opinions Model
Code Provisions and Forum</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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