A Miscellany

Anonymous

Mon, 12/20/2010 - 08:33

City Related

A Failure to Respond to an Ethics Complaint 
It's always interesting to see how many ways there are not to deal with
ethics complaints. When you think you've seen them all, a new one comes
out of nowhere. 
 
In this case, nowhere is Taylor, Michigan, a city of 65,000 outside
Detroit. According to <a href="http://www.thenewsherald.com/articles/2010/12/18/news/doc4d0bcf6b5c7833…; target="”_blank”">an
article
in the News-Herald on Saturday</a>, two city council members
filed an ethics complaint last March. According to <a href="http://library1.municode.com/default-test/template.htm?view=document&do…; target="”_blank”">§2-176(b)
of
the city's ordinances</a>, the city attorney is supposed to
determine if the complaint is valid and, if so, recommend to the board
of ethics or human resources department what to do next. But nothing
was done with the complaint and nothing was said to the complainants.

Nor was anything done in response to another complaint filed in
November by the president of the fire fighters union, despite the fact
that <a href="http://www.thenewsherald.com/articles/2010/11/16/opinion/doc4ce2df0f8b0…; target="”_blank”">a
November
16 editorial in the News-Herald</a> expressly said that the
city attorney had one day to respond to the complaint. 
 
Why? Because, said the city attorney, when a question was raised by a
citizen at a council meeting last week, the ethics ordinance might not
be valid. "I’m in the process of looking into that now.” 
 
But not a word of his uncertainty, or the reason for his uncertainty,
appears to have been given to the complainants or the council, which
would be charged with making the ordinance valid if there were any
questions. This is in a city where, according to the editorial, at one
time in the last year there were recall efforts going against most of
the council, as well as the mayor. 
 
An Attempt to Strip an Ethics Board of Transparency 
It's also interesting to see how many ways there are to argue for a
lack of transparency in ethics proceedings. According to <a href="http://boernestar.com/news/article_83f289b8-0b9b-11e0-b623-001cc4c03286…; target="”_blank”">an
article in yesterday's Boerne Star</a>, a new twist has been proposed
in Boerne, Texas, a city of only 6,000 people in central Texas. 
 
The "city staff" wants to delete a requirement in the city's ethics
ordinance that applies the state Open Meetings Act (TOMA) to the city's
ethics review commission. The city attorney explains: "The Ethics
Review Commission is advisory only, so is not subject
to TOMA at all. No posted
notice of meetings, no open meetings are legally required" unless
specified in the ordinance. 
 
Taking the open meetings requirement out of the ordinance would seem to
allow the ERC members to meet in private, to hold unannounced meetings,
and make unannounced decisions. 
 
But the city secretary says this isn't true. "It was never staff's
intention to not hold the meetings in
public. It was understood by
staff that the ERC would comply with the mayor's directions." So in
Boerne, presumably, the ERC will do what the mayor asks, and the
council will hold a hearing (or not), even when a council member is
involved. 
 
A secret, politicized ethics process is not the way to earn the
public's trust. 
 
Update: December 23, 2010 
For more on this, read <a href="http://www.boernestar.com/opinion/article_32918754-0d8f-11e0-8a8f-001cc… excellent editorial in the Boerne Star</a>. 
 
Co-option and Intimidation Works for Twelve Years 
How do you run a law practice out of your county government office for thirteen years
without getting caught? The best way is to require all your
subordinates to violate
the ethics code by working for your law practice (while being paid by the county), and then make it
clear that if they don't, or if they say anything about the law
practice, they'll be fired. In short, co-opt and intimidate. 
 
This is apparently what the Greene County (OH) treasurer did, according
to <a href="http://www.daytondailynews.com/news/dayton-news/fear-of-job-loss-kept-s…; target="”_blank”">an
article in yesterday's Dayton Daily News</a>. 
 
It helps to have an ethics commission with no authority to start an investigation without a sworn complaint (the Ohio state ethics commission does have this authority), no effective whistleblower provision, and no requirement to report on unethical conduct you know about. 
 
Some of his subordinates quit, but even after they quit, none of them
filed a complaint until July 2007, twelve years after the conduct
began. Apparently, they still feared retribution. One deputy treasurer
is quoted as saying, “I quit because of Jim, and I quit because I
couldn’t stand seeing all of the stuff he was doing that I knew was
wrong.” 
 
Why would people fear retribution even after they had resigned?
Because fear makes people act unreasonably, and because people who
intimidate get so caught up in the power fear gives them, they act
unreasonably, and their subordinates realize this more than anyone. For instance, just last month the treasurer fired a
subordinate when he found out that she had talked with the commission about him (he was
quickly told to rehire her). Someone who would fire someone while under
investigation is beyond acting rationally. 
 
The now former treasurer is barred from public office for seven years.
It will be interesting to see if he is barred from practicing, as well.
That is, as much as lawyers insist that their ethics rules should
govern, will their rules require suspension or disbarment or, in the alternative, will they respect government ethics rules enough to use them as
the basis for suspension or disbarment? 
 
Failure to Pay an Ethics Fine 
What do you do if an official refuses to pay a fine, and your ethics
code doesn't say anything about it, its drafters figuring that an official isn't
going to want to be seen by the public refusing to pay an ethics fine? 
 
This is the situation the Santa Fe ethics board is facing. According to
<a href="http://www.santafenewmexican.com/Local%20News/ethics-code-Month-after-f…; target="”_blank”">an
article in the New Mexican on Saturday</a>,
it fined a council member $499 in November. At first, he wasn't sure if
he would pay it, but recently says he changed his mind, that it wasn't
worth the hassle. But he still hasn't taken the pains to write the
check. 
 
One way to ensure swift payment is to add on interest and penalties for
failure to pay. But some people may see if they can get away without
paying the interest or penalties, either. 
 
The ethics board could most likely go to small claims court to get its
fine paid. One would think that any official would be too embarrassed
to let this happen. But some people's shame level can be pretty high. 
 
Update: December 23. A <a href="http://www.santafenewmexican.com/Local%20News/Local-briefs--Dec--23--20…; target="”_blank”">Santa Fe New Mexican post</a> yesterday said that the council member paid the fine. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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