The Problems with EC Jurisdiction Over Charter Violations
It is unethical for a local official to violate a law, especially
the city or county charter. But such a violation is usually not a
government ethics violation, because it has nothing to do with conflicts
of interest. It may be a misuse of office, but it is not a misuse of office to benefit oneself, one's family, or one's business associates.<br>
<br>
And yet some ethics codes contain a provision making a
legal or charter violation an ethics violation. Here is one from
Forest Park, GA, a city of just under 20,000, which has been the basis for the city's two ethics complaints in
the last three years, according to <a href="http://www.news-daily.com/news/2013/jul/03/gippert-files-ethics-complai…; target="”_blank”">an
article in the Clayton <i>News Daily</i></a>:<blockquote>
Section 2-2-44(t). No city official
shall engage in any activity or transaction that is prohibited by
law now existing or hereafter enacted which is applicable to
him/her by virtue of being a city official.</blockquote>
Both ethics complaints alleged that high-level elected officials
ordered members of the executive branch to do something. The city charter
prohibits this. Such acts are generally prohibited by charters in
council-manager governments, such as Forest Park's.<br>
<br>
There are numerous ways in which a city official can violate a
charter. A violation may involve elections, the legislative
process, the appointment of city officers and board members, or financial issues
such as the budget, borrowing, and taxation. It may involve all
sorts of legal and technical areas in which an ethics commission
and its staff have no expertise.<br>
<br>
Such a provision places an ethics commission in the role of
refereeing personnel battles and legislative and executive branch
turf battles (such as in the Forest Park cases), partisan battles
over council votes and elections, financial disputes, and anything
else that can go wrong or can be used as a political weapon. The
words in the provision may be few, but they greatly multiply an
ethics commission's jurisdiction and face the ethics commission
with a wide range of difficult issues and partisan battles.<br>
<br>
The questions that need to be asked are (1) Whose function is it
to uphold charter provisions and other laws in these
government-oriented areas? and (2) Is this the proper
function of a commission that is otherwise responsible for
conflicts of interest matters?<br>
</span><br>
When a council member, a council staff member, or a high-level appointee is
alleged to have violated a charter provision or other
government-related law, the matter should be handled by the
council. If an employee is alleged to have violated a charter
provision, the matter may be handled by the city manager.<br>
<br>
If
charter language is not clear, only the council should be able to interpret it.
If a charter provision proves to be problematic, the council can recommend that it be amended,
and in most jurisdictions create a charter revision commission to
deal with the problem. An ethics commission can do nothing but
treat the problem as a respondent's personal problem (or, if it thinks outside the
box, instead turn the matter over to the council, where it
belongs).<br>
<br>
It can be difficult for a council to handle these matters fairly and responsibly. An alternative is to give an ombud the authority to deal with these matters. Such an
individual would be in a better position to deal with these
matters, just as an ethics officer is in a better position than
an ethics commission to deal with most government ethics matters.<br>
<br>
Selecting an ethics commission to deal with charter violations
reflects a misunderstanding of the word "ethics" in this context. Government
ethics is not about any misconduct by government officials and
employees. Some misconduct is better handled by the criminal
justice system. Other misconduct is better handled by human
resources, by supervisors, or by civil suits. Charter provision
violations are better handled by a council or an ombud.<br>
<br>
If a council does not deal responsibly with alleged charter
violations, citizens should demand an ombud. It doesn't have to be
a full-time position, but it should certainly be an independent
position, selected by community organizations rather than elected
officials or appointees.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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