How ECs Can Preserve Their Full Allotment of Members

I learned this week that the board I administered until last July,
the New Haven Democracy Fund board (the Fund is a public campaign
financing program for the city's mayoral election), no longer has
enough members to hold an official meeting. The seven-member board
has three members, and it needs four members to have a quorum.<br>
<br>
This is an especially serious problem because there is a mayoral
election this year, and the mayor, whose responsibility it is to
select board members, has chosen not to participate in the program.
Whatever the reason for the mayor's failure to keep the board
stocked with members, it looks like he is trying to prevent the
program from functioning. This is not a good thing for anyone.<br>
<br>
It may be hard to believe that a board, or the citizens or news
media, would allow this to happen. But it is not that unusual for an
ethics commission, through term endings and resignations, to drop
below the number required to hold a meeting. Even one or two open
seats can make it very hard for an ethics commission to get a
quorum. An ethics commission without a quorum can do nothing,
especially if it has no staff. And even if an ethics commission can
meet sometimes, motions can be difficult to pass and decisions
difficult to make when a majority of the full membership or a
supermajority is required. The result is moribund ethics programs
across the country.<br>
<br>

For example, in Memphis no ethics commission members were appointed
for three years after the passing of an ethics code. In Erie County,
New York (home of Buffalo), <a href="http://www.cityethics.org/content/tough-way-revive-moribund-ethics-comm…; target="”_blank”">the
comptroller had to do a formal investigation</a> to bring it to
the public’s attention that the county ethics board had only one
member, and that the ethics program was not functioning. In New
Haven itself, the ethics board had only one member for a substantial
period of time.<br>
<br>
The reasons for the failure to fill seats on an ethics commission
can be many. Mayors may be angry with the way an EC has treated
them, or they may want to protect themselves or their colleagues
from a recent complaint. Councils may not be able to get past
partisan disagreements in order to approve appointments. Often,
appointing ethics commission members is simply not a high priority
and there are no citizens begging to be appointed. Inattention is
probably the principal reason.<br>
<br>
<b>Solving The Problem by Changing the Process</b><br>
But there is no excuse for ethics commission members to be
inattentive. And they don't have to be passive, accepting the
situation as out of their control. In fact, an EC has an obligation
to the public not to let the conflict at the heart of their
selection process (that is, the fact that EC members are selected by
officials under the EC's jurisdiction) destroy the ethics program
and thereby undermine the public's trust in these officials.<br>
<br>
There are three ways in which an EC can solve the problem, two of
which involve changing the process. The first two approaches deals
with the problem before it occurs, the third after it has occurred.<br>
<br>
1. Before an EC is faced with having too few members, it should
recommend changing the selection process to follow the best practice. This practice is to remove the conflict at the
center of the selection process by establishing an independent
selection committee of representatives from community organizations
to select a pool of possible appointees to the ethics commission
(see <a href="http://www.cityethics.org/node/770&quot; target="”_blank”">my blog post on
this process</a>). If the mayor or council fails to appoint
someone from the pool within thirty days of a seat becoming vacant,
the chair of the selection committee will select an individual, and
that individual will automatically be appointed.<br>
<br>
One must consider the possibility that, at some time in the future,
there may be no pool of possible appointees, because the selection
committee has forgotten totally about it and everyone who was in the
pool is unable or unwilling to serve. In such a situation, the
selection committee should be given thirty days to name two or three
possible appointees. If it fails to do this, the mayor or council
should be given sixty days to select someone. If this appointing
authority fails to act within sixty days, then the remaining members of the ethics commission
should be allowed to select someone, who would automatically be
appointed.<br>
<br>
2. If officials refuse to give up control of the selection process,
the EC should recommend that if the appointing authority fails to
appoint someone within, say, sixty days, the ethics commission may
itself select an individual, who would automatically be appointed.<br>
<br>
Another approach that makes it easier to keep a full allotment of EC members is to recommend that the board have two alternate members, who can gain experience and be ready to step right into the shoes of any member who resigns.<br>
<br>
3. If there are no such rules and the EC is missing one member for
more than three months or two members for more than a month without
any selection having been made, an ethics commission should act
immediately. It should treat the officials' failure to act as an
opportunity to change the selection process, creating a precedent
that may later become law.<br>
<br>
First, ethics commission members need to recognize that just because
a mayor or council is required to <i>appoint</i> ethics commission members,
this does not mean they have to <i>select</i> them. The selection process
can effectively be contracted out to community organizations, even
if this process has not been inserted into the ethics code.<br>
<br>
EC members should contact a few community organizations, such as the
League of Women Voters, a bar or other professional association, and
a clergy group, and ask if they would quickly select someone to
serve on the EC (either by having the individual directly apply for
the position, while letting the EC know or, better, by giving the
individual's name and information to the EC, so that the EC can give
the appointing authority a pool of names to choose from). It is
difficult for an appointing authority to ignore individuals who have
been selected by community organizations.<br>
<br>
The next step is to bring these organizations together in a
selection committee to create a pool of possible appointees for the
future. This will change the selection process, and make it far more
likely that the process will be inserted into the ethics code.<br>
<br>
<b>After EC Members' Terms End</b><br>
It is also important to expressly provide that, when an ethics
commission member’s term ends, that member may remain in her seat
until an appointment has been made, and the new appointee has
attended his first meeting. With respect to the first part of this
rule, the most frequent reason for a seat opening is the end of a
member’s term. Some members want to be reappointed, some want to
move on, some aren’t certain. If they are allowed to stay until a
new appointee takes their place (or the decision is made to
reappoint them), most members will stick around, especially if there
is a clear time limit on their post-term service. Without such a
time limit, some ethics commission members stay on for years,
feeling that it’s their duty, but serving begrudgingly. This isn’t
good for anyone.<br>
<br>
With respect to the second part of the rule, the making of an
appointment does not necessarily mean that the appointee is willing
or able to attend meetings. It is useful to add a third part to the
rule that treats a failure to attend one’s first three meetings as a
resignation from the commission. Otherwise, board members have to
try to get someone they have never met to resign. This is a
very difficult thing to do. I know, because this happened to the
Democracy Fund board.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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