Houston Ethics Reform II: The Ethics Provisions

Anonymous

Fri, 01/21/2011 - 05:49

City Related

There are several problems with Houston's new ethics provisions, in
addition to what I pointed out in my last blog post. Some of them are
typical, some of them are unusual. The ethics reform ordinance is attached;
see below; <a href="http://library.municode.com/index.aspx?clientId=10123&stateId=43&stateN…; target="”_blank”">the
old
ethics ordinance can be found by clicking here</a> and scrolling down
on the left to Code of Ordinances Chapter 18).

Impropriety and Misconduct 
The first striking thing about the new ethics provisions is
the odd distinction it makes between impropriety and misconduct.
Generally,
one speaks of the appearance of impropriety, with "impropriety"
referring to a vague idea of wrongdoing, from the public's point of
view. Houston's definition of
"impropriety" is purely legal: whatever conduct violates Section
18-3 of the new code, that is, the basic ethics provisions, but not all
the ethics provisions. "Misconduct," on the other hand, refers not to
what is commonly referred to as "ethical misconduct," but to a
violation of a "penal law" of the U.S., Texas, or a penal provision of
the ethics code (but not, presumably, a Houston penal ordinance, if
there are any). 
 
What this all seems to be about is having any criminal violations
handed off to criminal authorities,which is the norm. But this is a
complicated and
confusing way to do it. It is one result of partially criminalizing
ethics in Houston. 
 
The Ethics Provisions 
There are more serious problems with the new ethics provisions
(§18-3). The basic conflict provision is
exceptionally vague: "It shall be unlawful for any city official
to: (1) Engage in any business or professional activity that conflicts
with the discharge of official duties." It is a minor improvement on
its predecessor, which instead of "conflicts" read "might reasonably tend to
conflict." But it is still just as vague, and it
still makes having a conflict unlawful, a common mistake, but
problematic. Conflicts are not the issue, but rather the way they are
handled by the officials who have them. 
 
And I couldn't find anything in
the ethics code that tells officials how to handle their conflicts by,
for example, withdrawing from a matter. If I didn't miss this
provision, this is a very serious omission. 
 
The second ethics provision refers to investments and other "interests"
that "create a conflict between the public trust held as an official of
the city and the official's private interests." This is the way one
defines a conflict of interest in a lecture, before saying much more
about what a conflict is. But this is not appropriate language for an
ordinance. It provides little guidance to officials or to anyone trying
to enforce the ethics code. Vague language is difficult to enforce, and is often used for this very purpose. 
 
The third ethics provision makes the common mistake of making the
disclosure of confidential information itself (rather than for
someone's benefit) an
ethics violation, even though it has nothing to do with government
ethics. 
 
Then the provision uses the concept of
reasonableness, which I don't think belongs in an ethics code (note
that it was taken out of the basic conflict provision). Here it is used
in a way I haven't seen. One cannot accept
employment that "the official might reasonably expect would require or
induce him to disclose confidential information acquired by reason of
his official position." This is certainly something an ethics officer
would tell an official, suggesting to the official that it would look
bad if
she went to work for a developer after having worked on putting
together a project the developer is interested in. But what enforcer of
the code could expect an official to make this judgment about
reasonable expectations? From another point of view, is
this enforceable? If not, it should appear in an aspirational
part of the code, or in a comment to this provision. 
 
The fourth ethics provision includes two provisions which are unrelated
and usually separate. The first is misuse of city property, the second a basic
misuse of office or special consideration provision. They are put
together by repeating the term "use of the official's position." But
misuse of city facilities is not really about misuse of position, which
is usually thought of in
terms of a position of responsibility and power. In fact, use of city
facilities is the violation regular employees are most likely to do.
But
regular employees are still not covered by this part of the ethics code. 
 
The seventh ethics provision is the most unusual of all. What is all
too common about this harassment and discrimination provision is that,
although these are not government ethics matters, but rather human
resource matters, they appear in too many ethics codes, because most
people don't realize they are out of place. What is especially odd here
is that §18-16(i), which gives the ethics commission its only
enforcement powers (to issue a public rebuke or reprimand), applies only
to this ethics provision. 
 
Harassment is a difficult human resources
issue, and discrimination is a complex EEOC matter, which no untrained
ethics commission should get anyway near. I can't imagine how the
ethics commission was given its only enforcement powers with respect to
these two extremely difficult areas, which require far more training
than ethics commissions generally get. 
 
It's true that all these ethics provisions do not apply to regular
employees, but EEOC laws and regulations still apply to high-level
employees, appointees, and elected officials, I believe. An ethics
commission is not the place to deal with them, and I would think that
this provision would create jurisdictional problems. But this is not a new provision, so it appears that the way not to create jurisdictional problems is for the ethics commission simply not to act on its powers. That's not a very good way to write an ethics code or run an ethics program. 
 
Too Much Complexity 
Section 18-3(b)(2) is hard for me to imagine:<ul>

It shall be unlawful to ... Use or attempt to use the official's
position to influence or attempt to influence a contractor or a
recipient of grant money administered by the city to utilize the goods,
labor, or services of any person for the private gain or advantage of the official
or others.</ul>

Does this mean that an official shouldn't try to talk a contractor or
grant recipient into hiring someone? Then why speak of "the official or
others"? Clearly, it would help the person hired, and the official
might get a kickback. But wouldn't such a kickback be a crime and,
therefore, not the sort of "impropriety" that this section is supposed
to include? And who are the "others" contemplated here? 
 
This is a typical example of an unnecessarily complex ethics provision.
Ethics provisions should be understandable to ordinary government
officials and employees without having to consult a lawyer. They should
be spelled out as clearly as possible, and use language and sentence
structures that need no translation or untwisting. 
 
EC Staff Members Are Not City Employees 
Another curious thing about the new provisions is §18-16(c), which
states that "no person employed or retained by the commission shall be
considered an officer or employee of the city." This refers to ethics staff
members, if the city sets aside money for them (nothing is said about
this possibility). Why should they not be officers or employees? 
 
Is this intended to limit the ethics commission's jurisdiction over those working for them? This is
doubtful, since the term "officer" is not used anywhere in these
provisions, and the ethics commission does not have jurisdiction over employees. This leads one to believe that ethics staff would not get
the perks enjoyed by city employees. In other words, they would be
cheaper, and harder to hire. 
 
While employees are pretty much left out of these provisions, it's
interesting to note that the requirement to annually distribute a
notice of the functions and duties of the ethics commission (a short
list) and the procedures for filing complaints applies only to
employees, not to officials (see §18-16(k)). 
 
Campaign Contributors and Jurisdiction 
It's interesting that, in a code whose provisions are very narrowly
applied, there is a provision that applies to any "person making
contributions to candidates." That provision, §18-32, makes it
unlawful to deliver a contribution to a candidate in three locations:
City Hall, the City Hall Annex, and any building used by the planning
commission. It's okay to have the contribution delivered to these
addresses by mail or a delivery service, but not by oneself or any
other unofficial individual. I don't understand why contributions
should be sent to any government building, or why contributors are
singled out here, while contractors, developers, consultants, and
employees are not covered by the ethics code. 
 
Most ethics code are full of odd, complex, and inappropriate provisions such as
these, as well as omissions, which I have scarcely touched upon in this post. I will continue to critique the failings of ethics reforms until
those who draft ethics codes go about the task more
responsibly. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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