Questioning the Assumption of An Official's Sole Responsibility for Ethics Violations
It is assumed in government ethics enforcement that an official who
mishandles a conflict situation is solely responsible for her
misconduct. This assumption is rarely questioned. The official might
have received no training, or poor training. The official might not
have been encouraged to seek advice; in fact, she might not have had
access to professional ethics advice from anyone, or only from a
city attorney who was an important player from the other political
party. The official might not have been required to disclose her
possible conflicts annually, and the individual or entity with whom
she had a special relationship might not have had to disclose the
relationship with her. The chair of her board or director of her
agency might not have asked if anyone had a possible conflict, so
that the situation could be discussed and, if it was a gray area,
put before an ethics officer.<br>
<br>
In other words, the assumption is that no matter how poor the local government ethics
program, it is the official who is solely at fault. Not everyone accepts this assumption. For example, the Securities
and Exchange Commission (SEC) does not.<br>
<br>
According to <a href="http://www.paytoplaylawblog.com/2012/09/articles/sec/the-sec-is-now-off…; target="”_blank”">a
Pay to Play Law Blog post today</a>, the SEC announced yesterday
that it had reached <a href="http://www.sec.gov/litigation/admin/2012/34-67934.pdf" target="”_blank”">an
agreement</a> with Goldman Sachs for the payment of over $14 million in fines on
the basis of charges against a Goldman employee. That employee
made substantial in-kind contributions to a gubernatorial candidate,
and then, in violation of SEC rules, Goldman Sachs did not disclose
the contributions and illegally underwrote municipal bonds in the
state. When Goldman Sachs discovered the violations, it fired the
employee and reported the violations to the SEC. Goldman Sachs had
even trained the employee on the relevant SEC provisions. But
Goldman Sachs paid a hefty fine for the inadequacies of its ethics program (the employee is still under
investigation).<br>
<br>
Wouldn't it be nice if an ethics commission not only found an
official in violation, but also found the mayor, council, manager, and city or county attorney
responsible for the inadequacies of the local ethics program, including the refusal to provide funds for adequate ethics
training or for even a part-time, independent ethics officer, and the refusal to require annual and applicant disclosure? Of course, such
a finding would best be preceded by the EC making recommendations to
take these steps.<br>
<br>
How better could an EC make it clear that
prevention is key to government ethics, and that if high-level
officials do not take the prevention of ethics violations seriously,
they deserve to share in the responsibility for violations when they
occur? Raising the issue of the government's ethics environment, and institutional pressures that make it an unhealthy one, would also be helpful.<br>
<br>
Considering the responsibility of high-level officials would give an EC the
opportunity to require them to explain how they will take responsibility for
preventing ethical misconduct. As it is now, most of a council's
responses to an ethics scandal focus on enforcement (usually
criminal) against bad apples, as if the council members were not responsible for the
failure to create an effective, comprehensive ethics program and a
good ethics environment. Bringing high-level officials into an enforcement
proceeding is a good way to change this dynamic and place the focus
of ethics reform on prevention.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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