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 Battle Ground, Washington (pop. 18,000) provides yet another example of the problems that may arise.

In August, the council passed a new code of ethics (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 council-manager form of government). Only council members can file complaints, even though the code applies to all board and commission members, as well.

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.

So, according to an article in the Oregonian 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.

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.

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.

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.

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?

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.

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.”

Is this the sort of conduct the council was contemplating instead of the usual lies and lack of decorum?

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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