A Council-Controlled Ethics Process Can Be a Real Battle Ground
It is difficult to emphasize too much that council control over the
ethics process is not only inappropriate and ineffective, but harmful.
The first use of a new ethics ordinance in the aptly named <a href="http://en.wikipedia.org/wiki/Battle_Ground,_Washington" target="”_blank”">Battle
Ground, Washington</a> (pop. 18,000) provides yet another example of
the problems that may arise.<br>
<br>
In August, the council passed a new <a href="http://www.mrsc.org/wa/battleground/index_dtSearch.html" target="”_blank”">code of
ethics</a> (click link and go to Ch. 2.78) which keeps the entire
ethics process, from filing a complaint to enforcing the code, in the
hands of the council. An ethics and administration committee consists
of the mayor and two council members (the city has a <a href="http://en.wikipedia.org/wiki/Council%E2%80%93manager_government" target="”_blank”">council-manager
form of government</a>). Only council members can file complaints, even
though the code applies to all board and commission members, as well.<br>
<br>
And although the code contains most of the core government ethics
provisions, it also serves as a council code of conduct, with provisions
ranging from maintaining decorum to telling the truth. It's so broad
that it's hard even for council members to know what constitutes a
violation.<br>
<br>
So, according to <a href="http://www.oregonlive.com/clark-county/index.ssf/2010/12/battle_ground_…; target="”_blank”">an
article in the <i>Oregonian</i></a> last week, one of the charges in the very
first complaint made it through a closed committee meeting to a public
hearing before the council even though it did not even allege a
violation of the code. The charge was that a council member had
improperly tried to influence the city manager, a common problem that
had not been included in the code of ethics. But the council member who
filed the complaint, as well as the two other council members and the
mayor, didn't realize that the catch-all ethics code hadn't caught everything. That's a problem.<br>
<br>
Then when they got to the public hearing, there were no procedural
provisions in the code that would help them. The city attorney
helpfully told the council, "You guys get to make it up as you go
along." Since there was not an independent ethics commission, no one
had focused on coming up with regulations or rules of procedure to do
this.<br>
<br>
The other charge was that a council member had lied to the council "by
saying a local movie theater owner supported a tax on tickets sold."
This actually would be a violation of the code. You can imagine the
battleground council meetings would be if they held a public hearing on
every purported fib like this.<br>
<br>
You would think the mayor would want to clarify the ethics provisions and
perhaps cut them back, but instead he called for adding violations of
the law as violations of the ethics code. This way everything could be
included, from a traffic ticket to failure to make an alimony payment.
Why not have council members air each other's dirty laundry every time
they get together? That ought to increase the public's trust in, and respect for, those who are supposed to be setting policy for their community.<br>
<br>
Here again is an example that makes a mockery of the constitutional
Speech or Debate Clause, as applied in a government ethics context. Why would any legislator in his right mind
rather be brought before his own legislative body by a member of his
legislative body, who most likely despises him and/or wants his friend
to take over his seat, rather than before an independent, nonpartisan
body of individuals who have no personal or political stake in the matter? Is the devil you know really better than the devil
you don't know?<br>
<br>
It also should be pointed out that the worst penalty in the Battle
Ground code is loss of committee assignment. The other penalties range
from reprimand to censure to admonition, which to the public (and isn't
this all supposed to be about the public?) make no difference.<br>
<br>
What is the public left with after the charges were dismissed? Just the charged council member saying, “I think [the
mayor] and some members of the council have been after me for a very
long time. I’m not surprised that they found a way to come after me.”<br>
<br>
Is this the sort of conduct the council was contemplating instead of
the usual lies and lack of decorum?<br>
<br>
The Battle Ground council needs to learn from this experience and
create a real ethics program, with training, advice, disclosure, and
independent enforcement. If it really wants a code of conduct, with hearings
about its members' decorum and truth-telling, it should split those provisions away from
the ethics code.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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