New Wayne County, MI Ethics Code Falls Short

Anonymous

Sat, 04/14/2012 - 06:34

County Related

On April 5, the county commission in Wayne County, MI (which includes Detroit) passed a new ethics
ordinance (attached; see below), following multiple scandals. It
contains many good provisions, but it does not create a government
ethics program. By this, I mean that it does not provide an
independent ethics commission, it does not provide for an ethics
officer or other independent staff member, it does not provide for ethics
training and only provides for written advice at an ethics board
meeting within thirty days, which can be very difficult to achieve.
Its disclosure requirements are minimal. And it does not provide for
the ethics board to initiate its own complaints when it is given
information but no individual is willing to risk filing a complaint
(and here the principal burden of providing information is on the
complainant, not on the ethics board). 
 
Like so many attempts at ethics reform, this one appears to be too
focused on solving problems that have arisen. In this case, the
focus is on procurement, so that conflicts relating to land use,
grants, and other areas where individuals and businesses benefit
from government are ignored. And like so many attempts at ethics
reform, this one appears to be lawyer-driven, focused on laws rather
than ethics, that is, on provisions and enforcement rather than
training, advice, and disclosure, which are the heart of any
government ethics program.

It's not too late to fix the problems with this ordinance. Very few
people understand government ethics, not to mention have experience
writing ethics ordinances. An admission by the county commission
that its first attempt has some problems that should be fixed should
be far more respected than misplaced pride in a job half done. 
 
The principal way in which the ordinance limits its focus to
procurement is by creating the concept of a "County business," which
is defined as "any business which, or person who, has taken part in
a County procurement directly or indirectly within the previous 24
months, or which is expected to take part in a County procurement
within the next 12 months." Then it says that a conflict is created
if an official or employee is (1) employed by a County business in a
"key" position, (2) has negotiated or is negotiating for employment
with a County business or a prospective subcontractor or consultant;
or (the most interesting) (3) "has a substantial financial interest
in a business in which one or more of the principal beneficiaries of
this County business also has a substantial financial interest." 
 
The rest of the ordinance also applies primarily to "County
businesses," excluding other areas of government activity. 
 
Below is some more specific analysis of the new ethics ordinance. 
 
Indirect Relationships 
One interesting aspect of the definition of "County business" is subparagraph 3,
which tries to deal with the situation where an official is involved
with a business that is owned or otherwise associated with a
business seeking benefits from a local government. This sort of
situation, when it comes out, can create a serious appearance of
impropriety, but it is very hard to spell out in an ethics
provision. The Wayne County provision deals with one variation of
this situation. 
 
Selection of Ethics Board Members 
It is bad enough to have ethics board members selected by anyone
subject to their jurisdiction. It is worse to have each member
selected by a separate county commission member, because each member will be
seen as representing that representative. Ethics board members
should be selected by community organizations, so that they both are
and appear to be independent and non-political. 
 
Waivers and Penalties 
The waiver process should also not involve the county commission.
The ethics board should be allowed to provide waivers on its own.
The ethics board should be also allowed to penalize in ways other
than small fines, including reprimands, restitution, avoidance, and
debarment, where relevant. Also, it should be made clear that
waivers should be handled in a formal public process, with good cause
shown. 
 
Time Limits, Investigations and Settlements 
The time limits on ethics board action are far too short. Sixty days
from complaint to decision is nearly impossible. And what happens if
the board fails to reach a decision within this time period? An
investigation alone can take far longer than sixty days, as can
settlement negotiations. As it is, however, the ordinance does not
clearly allow the ethics board to investigate, putting the burden on
a complainant who may only have limited information. And there is no
mention of settlement, which is the way most complaints should end. 
 
Non-Financial Interests 
In this ordinance, conflicts are limited to financial interests. This allows, for
example, an official on the board of an organization seeking a
contract or grant from her agency to participate in helping her
organization, both as official and board member, get the contract or
grant (in fact, there is an express exception for this). No official should be allowed to wear more than one hat in any matter, whether that hat cost money or not. 
 
Gift Exceptions 
Making an exception to a gift rule for friends is a problem. Everyone is
a politician's friend, and no definition can prevent an official
from saying someone is his friend. This means that a provision has
to fall back on something like Wayne County's "has reason to believe
that, under the circumstances, the gift was provided because of the
employment position of the public servant and not because of the
personal friendship." That doesn't supply much guidance, and won't prevent a lot of conduct that appears to the public as improper. 
 
There are far too many other exceptions that allow large gifts to
officials, as well as pay to play. 
 
Confidential Information 
The confidential information provision should have ended with the
first paragraph, which prohibits the use of confidential information
for gain. Keeping confidential information secret is not a
government ethics matter and, in fact, there are times where it is
important to disclose confidential information, including
information obtained or discussed in closed session. 
 
Disclosure 
The disclosure requirements are limited to information relevant to
procurement. Why shouldn't the public know who their elected
officials work for and what local businesses or organizations they
own or have a high-level position in? There are so many issues other
than procurement where this information can be important. And what
about property owned in the county? This is important for land use
and related matters. 
 
Also, why should official disclosure be under the clerk's control,
while lobbying disclosure is under the ethics board's control? The
ethics board should be in control of all ethics matters. 
 
Finally, it looks really bad to have the first financial disclosure
occur a full year after an ethics ordinance is passed. Even if
nothing else is done to improve this ethics ordinance, the filing
date should immediately be changed to June. 
 
Unusual Provisions 
The definition of "relative" includes all the inlaws and steps-, but
it also includes two groups I've never seen included before:
"a former spouse or an individual with whom the public servant has
had a child in common." 
 
The political activity provision includes a paragraph that goes
beyond the usual prohibition of coercing subordinates into helping
out with campaigns. It also prohibits the flip side, that is, preventing subordinates from
helping out in others' campaigns:<ul>

A public servant, personally or through an agent, is prohibited from
directing or coercing any other public servant from participating in
any political activity.</ul>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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