The Swords of Politics and the Shield of Government Ethics

Anonymous

Fri, 12/14/2012 - 05:57

Advisory Opinions

No one wants a political government ethics program, and yet the
people who most often worry out loud that it will be political want
it to be political. This apparent paradox can be explained by looking at the
various meanings of the word "political." Which of these meanings is
most important to a government ethics program, and which of them
are, well, "just politics"? And what can a government ethics program do to lessen politics?

1. A government ethics program can be political in the way it is
used, that is, when the program is employed as a means to undermine
an individual, party or other group's opponent by filing an ethics
complaint against that opponent. 
 
2. A government ethics program can be political in the way it
functions, that is, when the program is controlled by a party or
other group, so that its advice, decisions, action and inaction, and
recommended reforms favor some officials over others. 
 
3. A government ethics program can be political in the way it is
perceived, that is, when the public sees the program as controlled
by those who select the ethics commission members and staff, in
addition to writing its laws, making it operate behind closed doors,
and failing to enforce the laws sufficiently. 
 
No one wants a government ethics program to be political in any of
these three ways. But these three kinds of "political" are different
from each other, and different people raise the three issues. 
 
Nasty Politics 
The first kind of "political" is politics, nasty politics. Too many
local government officials, and their supporters, use any means to
undermine their opponents, rightfully or not. They will employ any
law and any process that is available. Politicians
are worried about "political witch hunts" if they give any office or
body authority over their conduct. But attacks are part of politics.
They have nothing to do with government ethics. 
 
And they will happen no matter how a government ethics program is
set up. If attackers cannot file an ethics complaint, they will
still make the same accusations publicly. If they cannot file an
ethics complaint anonymously, they will make the accusations
anonymously online or to the news media. If they cannot file an
ethics complaint near the time of an election, it won't stop them
from making the conduct an issue during the election. 
 
What it will do is prevent the ethics commission from quickly
dismissing a complaint that has no basis in the law, from
investigating and quickly alerting the public that there is no truth
to the allegations, and from penalizing officials who actually did
violate ethics provisions. In other words, limits on an ethics
program that are designed to protect officials from political attack
will not help those who are falsely attacked and will help those who
are truly attacked. 
 
But most important, the complaint here, which according to <a href="http://www.suntimes.com/news/politics/16411863-418/aldermen-blast-anony…
Sun-Times article</a> came up most recently in Chicago's council
(but is to be found almost everywhere) — “That means anybody with
any ax to grind against anybody can just send out an unverified,
anonymous complaint" — isn't about the government ethics program,
it's about the axes and swords employed in politics. 
 
Partisanship 
The second kind of "political" is about power, the kind of politics
that is meant when one says that an ethics program has been
"politicized." When those in power insist on controlling a
government ethics program, they make it part of governing, not a
program that is intended to train, advise, disclose, and oversee those who govern a community. 
 
This power is applied in several ways. One way is by ensuring that
the mayor appoints EC members, so that she can either stack the EC
with supporters or fail to replace members, so that the EC cannot
function. Another way is to allow one or another party to have a controlling
majority of EC members, or to require supermajority votes so that a
small number of supporters of any official can prevent an
investigation or finding of violation. Political power often
functions via procedural rules that no one but lawyers notice. 
 
The application of political power in a government ethics program
does two damaging things to the program (besides what will be
considered in part three of this post). It employs the program
itself as a way of both harming opponents and protecting the friends
of those in power. And it sends the message that it is fruitless for
those out of power to bother filing complaints or for anyone to file a complaint against someone in power. 
 
Since government ethics programs are intended to prevent officials
from misusing their office for their personal benefit, it goes
against this goal to allow officials to use their power in any way
to affect the government ethics program, other than to make it work
more effectively and independently in order to protect the public
interest. 
 
Appearance and Trust 
The third kind of "political" is the one that fits best into the
goals of a government ethics program. Government ethics is not about
nastiness nor is it about power. But it is about how things are
perceived by the public. When EC members and staff are selected by
those under their jurisdiction, when elected officials design an
ethics program to be confidential rather than transparent (operating
behind closed doors), when elected officials put ethics advice into
the hands of a city attorney with whom they interact regularly and
who reports to them, and when elected officials do not allow an
ethics commission to penalize them when they violate ethics
provisions, the public reasonably believes that the government ethics
program is there for the politicians, not for the public. 
 
When there is such a perception, any secret advice that lets an
official get away with something (even if perfectly legal), any
secret proceeding that lets an official off (even if it's the right
result), and any violation that is not accompanied by more than a
slap on the hand (even if the violation was minor) not only
undermines the public's trust in its government, but also the
public's trust in the ethics program. 
 
This is why this third kind of "political" is the one that matters.
Politics can get nasty, and anyone in power wants to control
whatever she can. But a government ethics program that is seen to be intended to protect officials will undermine the very purpose
for the program. 
 
This is why the kind of talk that's coming from the Chicago council,
and greets any ethics reform attempt that seems threatening to
officials, is not only wrongheaded, but dangerous. Even the best
ethics program can be undermined by the perception that it is part
of the political system. 
 
The best way to look at an ethics program is as something owned by
the public, much like Portland, OR's "Voter-Owned Elections" public
financing program. It is the public, through an ethics officer, that effectively advises
government officials how to deal responsibly with their conflicts.
And a complaint or tip to an EC, anonymous or not, is no longer the
complainant's. It is owned by the public, and if a preliminary
investigation finds there is sufficient cause to believe an
allegation of an ethics violation is true, it should be pursued
however the original information came to the EC's attention, whether
via a news article, a blog post, a tip, or a complaint. 
 
A Chicago council member is quoted as saying, "If you’re accusing me
of something, you need to be known. I need to be able to face my
accuser." In an independent ethics program, you can face your
accuser: the public, via its independent representative. In
fact, isn't that the same thing that happens in a criminal
proceeding, when the stakes are greater and the accused's
obligations far less? 
 
Taking Up the Shield 
The great thing about an independent government ethics program is
how effectively it can be used to prevent political attacks relating
to ethics issues. All an official has to do is ask for advice
whenever he has any relationship with someone involved in a matter,
or whenever he seeks to do business with someone who does business
with the city. If there is an attack outside the ethics program, he
can say he sought advice and the EC can confirm this. If there is an
attack inside the ethics program, the matter will be dismissed,
because the EC already gave advice on the matter. An independent
ethics program provides protection for those who deal responsibly
with their conflict situations. How many government programs provide
such a light and handy political shield? 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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