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A Miscellany
Wednesday, September 5th, 2012
Robert Wechsler
Yet Another Mayoral Charity Mess, This Time in Toronto
According to an article in the Toronto Star this week and another in the Globe and Mail yesterday, today Toronto's mayor will appear in court "to explain why he participated in a council debate about whether he should return $3,150 in improperly raised donations" to his football foundation. Yes, you read that right: a mayoral football foundation. It raises funds to buy football equipment for children.
Who were the donations from? Your average football fan? No, several lobbyists, their clients and a company that does business with the city.
The council debate involved a report from the city’s integrity commissioner that concluded that the mayor had improperly used his city council status to solicit funds for his football foundation. The council then ordered the mayor to return the donations. He has not presented evidence that he did return them.
When the matter came before the council, the council speaker warned the mayor that he might be in a conflict situation, but the mayor spoke and voted on the matter anyway. The council "relieved him of any obligation to return the funds." How about that.
According to the article, the court could force the mayor out of office if he is found to have violated the Municipal Conflict-of-Interest Act (MCIA) (yes, Ontario, like New York City, chose not to use the word "ethics" in its code).
Perhaps a new ethics requirement should be that any official who wants to be involved in any way with a nonprofit must get the ethics commission's approval, promise to quickly refuse or return donations by anyone who seeks benefits from the local government, and make monthly reports of all donations and expenditures, swearing each month, under penalty of repaying treble damages without a hearing, that no donation was accepted from and no expenditure went to any entity, or any person who works for a firm, seeking a benefit from the local government, or that any such donation has been returned.
Here's a case where "draconian regulation" is merited. It might put a stop to mayoral charities altogether, and thereby protect both mayors and the public from the scandals they almost inevitably lead to.
An Alert on Risk Alerts
Yesterday, the Pay to Play Law Blog did a post on an SEC Risk Alert regarding conduct by brokers, dealers and municipal securities dealers inconsistent with the laws regarding contributions and disclosure. I don't want to discuss the risk alert itself, which is self-explanatory. I want to consider whether the risk alert is an approach to guidance that local ethics commissions might want to employ.
The idea of a risk alert is to share with those under one's jurisdiction observations of misconduct and ways to prevent it. It has two goals in one: to guide and to warn. The guidance is most important. By showing how situations can be dealt with responsibly (with examples of how it actually has been done), a risk alert can go beyond advisory opinions and general training to provide useful guidance to officials with respect to particular kinds of situations.
However, a risk alert also lets officials know that there is a serious risk in engaging in the sort of conduct the ethics commission has seen or heard about, whether or not there has been enforcement. After disseminating a risk alert and providing some time, an ethics commission faced with the sort of misconduct it has written about can enforce against it without any question whether the misconduct arose from ignorance or negligence rather than intent. Officials have been forewarned, and they will have no defense and, hopefully, will admit to the misconduct and settle without an extensive investigation and without a hearing.
A risk alert is the sort of approach every ethics commission should consider. ECs should not feel limited to giving advice and dealing with complaints. Sometimes the least expensive and most effective approach is something outside the box, which will save the cost of investigations and hearings as well as the cost to the public trust of future scandals. As much as most people focus on enforcement, it is important to remember that the principal goal of an ethics program is prevention.
Keeping the Door Ajar on Closed Meetings
According to an article yesterday in Journal North, the Santa Fe city council is considering a resolution to the city's Governing Body Procedural Rules that would prohibit the disclosure by council members of any matter or issue discussed in executive session, without approval of the disclosure by the council. The resolution considers an executive session no different from attorney-client privilege, stating, “The privilege of Executive Session is that of the Governing Body, not individual members of the Governing Body." And it provides for censure and other disciplinary penalties, should a council member disclose anything said in executive session.
The reason for the reference to privilege (which I don't think is appropriate) appears to be that the council's procedural rules state that any issue subject to attorney-client or “any other existing” privilege can’t be made public unless the city council votes to do so. This way, those who support the resolution can say they aren't changing anything; they're just making a definitional clarification.
Supporters of the proposal are rightly being accused of trying to silence dissenting voices and encouraging more executive sessions to keep council business from the public. Some are calling the penalties "draconian."
The most astute comment was made by a former council member, Karen Heldmeyer: "There are no exceptions for councilors coming out and reporting on things that aren’t covered by open meetings." In other words, everything said in an executive session is not necessary confidential. Only what is said with respect to topics that an open meeting law explicitly excepts can be kept confidential. The rest not only can, but should be made public. In fact, it is important to report abuses of the open meetings law, that is, the discussion of matters and issues that by law must be done in public.
The Santa Fe resolution would go beyond the open meeting law exceptions to allow everything said in an executive session, even those matters illegally discussed there, to be kept secret.
The resolution has been brought before the city's Ethics and Campaign Review Board, which appears to have the right to hold a public hearing to review and make recommendations regarding amendments to the Governing Body Procedural Rules. It's great that the ethics board has the authority to do this.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article in the Toronto Star this week and another in the Globe and Mail yesterday, today Toronto's mayor will appear in court "to explain why he participated in a council debate about whether he should return $3,150 in improperly raised donations" to his football foundation. Yes, you read that right: a mayoral football foundation. It raises funds to buy football equipment for children.
Who were the donations from? Your average football fan? No, several lobbyists, their clients and a company that does business with the city.
The council debate involved a report from the city’s integrity commissioner that concluded that the mayor had improperly used his city council status to solicit funds for his football foundation. The council then ordered the mayor to return the donations. He has not presented evidence that he did return them.
When the matter came before the council, the council speaker warned the mayor that he might be in a conflict situation, but the mayor spoke and voted on the matter anyway. The council "relieved him of any obligation to return the funds." How about that.
According to the article, the court could force the mayor out of office if he is found to have violated the Municipal Conflict-of-Interest Act (MCIA) (yes, Ontario, like New York City, chose not to use the word "ethics" in its code).
Perhaps a new ethics requirement should be that any official who wants to be involved in any way with a nonprofit must get the ethics commission's approval, promise to quickly refuse or return donations by anyone who seeks benefits from the local government, and make monthly reports of all donations and expenditures, swearing each month, under penalty of repaying treble damages without a hearing, that no donation was accepted from and no expenditure went to any entity, or any person who works for a firm, seeking a benefit from the local government, or that any such donation has been returned.
Here's a case where "draconian regulation" is merited. It might put a stop to mayoral charities altogether, and thereby protect both mayors and the public from the scandals they almost inevitably lead to.
An Alert on Risk Alerts
Yesterday, the Pay to Play Law Blog did a post on an SEC Risk Alert regarding conduct by brokers, dealers and municipal securities dealers inconsistent with the laws regarding contributions and disclosure. I don't want to discuss the risk alert itself, which is self-explanatory. I want to consider whether the risk alert is an approach to guidance that local ethics commissions might want to employ.
The idea of a risk alert is to share with those under one's jurisdiction observations of misconduct and ways to prevent it. It has two goals in one: to guide and to warn. The guidance is most important. By showing how situations can be dealt with responsibly (with examples of how it actually has been done), a risk alert can go beyond advisory opinions and general training to provide useful guidance to officials with respect to particular kinds of situations.
However, a risk alert also lets officials know that there is a serious risk in engaging in the sort of conduct the ethics commission has seen or heard about, whether or not there has been enforcement. After disseminating a risk alert and providing some time, an ethics commission faced with the sort of misconduct it has written about can enforce against it without any question whether the misconduct arose from ignorance or negligence rather than intent. Officials have been forewarned, and they will have no defense and, hopefully, will admit to the misconduct and settle without an extensive investigation and without a hearing.
A risk alert is the sort of approach every ethics commission should consider. ECs should not feel limited to giving advice and dealing with complaints. Sometimes the least expensive and most effective approach is something outside the box, which will save the cost of investigations and hearings as well as the cost to the public trust of future scandals. As much as most people focus on enforcement, it is important to remember that the principal goal of an ethics program is prevention.
Keeping the Door Ajar on Closed Meetings
According to an article yesterday in Journal North, the Santa Fe city council is considering a resolution to the city's Governing Body Procedural Rules that would prohibit the disclosure by council members of any matter or issue discussed in executive session, without approval of the disclosure by the council. The resolution considers an executive session no different from attorney-client privilege, stating, “The privilege of Executive Session is that of the Governing Body, not individual members of the Governing Body." And it provides for censure and other disciplinary penalties, should a council member disclose anything said in executive session.
The reason for the reference to privilege (which I don't think is appropriate) appears to be that the council's procedural rules state that any issue subject to attorney-client or “any other existing” privilege can’t be made public unless the city council votes to do so. This way, those who support the resolution can say they aren't changing anything; they're just making a definitional clarification.
Supporters of the proposal are rightly being accused of trying to silence dissenting voices and encouraging more executive sessions to keep council business from the public. Some are calling the penalties "draconian."
The most astute comment was made by a former council member, Karen Heldmeyer: "There are no exceptions for councilors coming out and reporting on things that aren’t covered by open meetings." In other words, everything said in an executive session is not necessary confidential. Only what is said with respect to topics that an open meeting law explicitly excepts can be kept confidential. The rest not only can, but should be made public. In fact, it is important to report abuses of the open meetings law, that is, the discussion of matters and issues that by law must be done in public.
The Santa Fe resolution would go beyond the open meeting law exceptions to allow everything said in an executive session, even those matters illegally discussed there, to be kept secret.
The resolution has been brought before the city's Ethics and Campaign Review Board, which appears to have the right to hold a public hearing to review and make recommendations regarding amendments to the Governing Body Procedural Rules. It's great that the ethics board has the authority to do this.
Robert Wechsler
Director of Research-Retired, City Ethics
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