Independence of Ethics Administration Should Trump Independence of Agencies and Districts

Two types of independence often clash when it comes to government ethics. It is important that government ethics programs be administered by independent commissions. But independent agencies often do what they can not to be subject to a local government ethics commission.

It is clear which sort of independence is more important, but independent agencies still put their interest in self-regulation ahead of the public's interest in an effective, trustworthy ethics program. This has been a big issue recently in Jacksonville, Palm Beach County, and Broward County, Florida. And it was a big issue in Louisville four years ago when the Metropolitan Sewer District (MSD) sued to have itself declared outside the metro ethics commission's jurisdiction when someone filed an ethics complaint against the MSD's executive director, chief engineer, and a board member. According to an article in the Courier-Journal, the MSD won its suit and its freedom from outside ethics rules and enforcement.

Fast forward four years, and now, according to an article last week in the Courier-Journal, the MSD appears to have been doing business with two of its board members, including unbid contracts with the chair totaling almost $600,000. The contracts, which only need to be disclosed under the MSD ethics code, would have been prohibited under the Louisville ethics code.

There are arguments to be made for why the contracts were not bid out, but not for sole source contractors sitting on the board. But what is wrong with the MSD's supposed independence (its executive director, chief engineer, and board members are selected by the mayor with approval by the council) can better be seen in a quote from another Courier-Journal article this week:

Ray Pierce, a Jefferson County Soil and Water Conservation District board member, and southwest Jefferson County neighborhood activist, tried to speak to the board but was ruled out of order by MSD attorney Larry Zielke. “In 10 years, I've never been able to address this board,” Pierce said afterward.

The MSD takes an independent position on citizens who have the nerve to want to say something to the board. It requires the public to submit their requests to speak to the board in letters written on paper to the executive director at least one meeting in advance. But fulfilling this requirement, which would be illegal in most states, does not guarantee the right to be heard. According to the article, the board chair, or the full board, may decide not to grant the request.

In fact, the MSD board amended its ethics code to prohibit board members from contracting with the MSD without soliciting or allowing any public comment. Clearly this amendment would be better than placing itself under the Louisville ethics commission's jurisdiction, a possibility that is now being discussed, but not by the public before the board.

It is clear from this that the MSD is not an independent agency, but a fiefdom. Past mayors have not fulfilled their obligation to the public to provide oversight over what is supposed to be a board overseeing a special district. One mistake is that past mayors have appointed board members who are in a position to do business with the MSD.

The current mayor has asked three board members to resign. But he might very well make the same mistake: he is looking for new members “with a particular interest and possibly expertise” in MSD issues. With expertise comes conflicts. Louisville needs intelligent, independent citizens who will represent the public, not the MSD.

It is worth noting that, although the issue of ethics commission jurisdiction over city and county agencies came up four years ago, and was litigated, it still hasn't been determined which agencies are under the EC's jurisdiction. It appears that the agencies would rather wait until an issue arises before working out who would have authority to investigate. A good plan for them, a lousy plan for the city's citizens. Internal investigations are very different from external investigations (the MSD problems came to light due to a state audit). And government ethics is also about training, independent advice, and disclosure. Any agency that doesn't want to clarify ethics jurisdiction should probably not have ethics jurisdiction over itself.

Robert Wechsler
Director of Research-Retired, City Ethics

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