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Cincinnati Situation VII - Who Should Administer and Enforce Government Ethics

<a href="http://news.cincinnati.com/article/20100605/EDIT01/6060329/A-Matter-of-…; target="”_blank”">The
<i>Enquirer</i>
editorial</a> I referred to at the end of <a href="http://www.cityethics.org/content/cincinnati-situation-vi-frequent-conf…; target="”_blank”">my last blog post</a>
raised another important issue:  who should be administering and
enforcing government ethics. Its conclusion was as follows:<br>
<ul>
[S]ome cases aren't clear-cut. They should be judged by the voting
public, not simply by some obscure bureaucracy in Columbus. Shine the
bright light of disclosure on all public officials' dealings. Then let
the people decide.
</ul>

In some cases, for example campaign contributions, disclosure is
sufficient, but this is not to let voters decide, but rather to let
them know who is supporting which candidates with how much money. In other cases, for example
where there is a conflict,
disclosure is insufficient. Disclosure alone would actually create more
distrust in government, because it would seem as if officials were
constantly voting to pursue their personal interests. That is why
disclosure is followed by recusal.<br>
<br>
And then there are cases, for
example self-dealing, where not even recusal will cure the problem.
No
one is going to trust a council member who gets a no-bid contract, no
matter how much disclosure there is, or even
if he does not participate in the transaction as a council member.
Because, however you cut it, he or his company is participating in the
matter. This is why self-dealing is not allowed.<br>
<br>
Apparently, the <i>Enquirer</i> editors would prefer to allow self-dealing, at
least where it is not black-and-white, and then hope that voters will
be aware of it, understand it, remember it, and be able to balance it
against the official's other conduct, good and bad. That is asking a
lot of voters.<br>
<br>
<b>Ethics Commission Advice</b><br>
In contrast to their faith in voters, the editors show disdain for the
state EC. They refer to it as
"some obscure bureaucracy in Columbus" and complain that it does not
"receive a lot of scrutiny itself." They are also concerned that
advisory opinions can "represent a single staff attorney's point of
view." But with all their concern for scrutiny, they do not comment on
the quality of the advisory opinions that come out of the state EC.<br>
<br>
The 2008 informal written opinion that is most germane to the "public
contract" issue (it is attached; see below) is truly excellent,
covering all the
possibilities, dotting all the i's. Written by a staff attorney with
exceptional experience writing advisory opinions, it is both a good
example to
follow, and an argument for centralized ethics administration. Only the
largest cities could have (although they often are not willing to pay
for it) sufficient expertise and staffing to provide such excellent
advice about a complex matter in a reasonable amount of time. See <a href="http://www.cityethics.org/node/786&quot; target="”_blank”">my blog post</a> that
contains links to advisory opinions from several state and large
city ethics commissions.<br>
<br>
In addition, the staff attorney's informal opinion is not the
last word, by any means. Government officials can request a formal
opinion from the entire EC,
and they can also seek judicial review. The editors' failure to disclose this certainly helped their argument.<br>
<br>
<b>Government Attorney Advice</b><br>
The editors' argument also effectively supports what the council member chose to
do:  take the advice of the city solicitor over the advice of the
state EC. The editors do not seem to have anything bad to say about the
advice of a non-specialist who represents council members rather than the public, and who, like most lawyers as opposed to ethics professionals, sticks to the letter of the law.
The biggest difference between a state EC advisory opinion and the
advice of a government attorney can be seen in the following paragraph from a <a href="http://www.ethics.ohio.gov/opinions/2009-02.html&quot; target="”_blank”">2009 state EC
advisory opinion</a> on an issue similar to this situation:<br>
<ul>
The Ethics Law and related statutes set minimum standards that all
public officials and employees are required to meet in order to avoid a
violation of a criminal law. Even where a public official or employee
meets these minimum standards, members of the public may question the
propriety of the public official’s or employee’s actions. Therefore,
even if a public official’s or employee’s family member does not have
an interest as described above, the public official or employee may
choose to abstain from participating in matters that have any impact on
the company that employs a family member.
</ul>
This is not what most elected officials want to hear, and therefore most government attorneys do not tell them this.<br>
<br>
<b>Voter Advice and Enforcement</b><br>
Letting the people decide is
what the great majority of politicians support, because they know that
most
people pay limited attention to such matters, do not understand them,
and forget them after a short while. Politicians greatly prefer this to
dealing responsibly with conflicts or having to answer to, or even seek
advice from, an independent ethics commission.<br>
<br>
"Letting the people decide" does not take the form of voting against
officials who do not deal responsibly with conflicts that are not clear
cut, as the <i>Enquirer</i> editors imply. Instead, vague feelings of
impropriety accumulate in the public's mind. That is, people are not likely
to vote
against a
particular council member due to a past conflict that was not
professionally resolved, but the more ethical controversies occur, the
more the public feels their government is there to
help itself rather than to act in the public interest. Public
participation, including voting, diminishes, and cynicism about
government grows. In short, letting the people decide tends to lead to
the people deciding less and less, or deciding in a negative manner.<br>
<br>
That is why it is so important to deal responsibly with ethical issues.
And especially in cases that are not "clear-cut," it requires good laws
and professional advice to do the responsible thing. I agree with the
editors that there is too much confidentiality in the Ohio ethics
program, but this is most likely what politicians want, not what the
"obscure bureaucracy" wants (e.g., the council member had the right to ask for the 2009 advisory opinion to be made public). Government ethics professionals favor
transparency.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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