Best Practices, The Criminalization of Ethics, and Illness As a Conflict Situation
According to <a href="http://www.capitalgazette.com/news/government/leopold-attorney-argues-f…; target="”_blank”">an
article in the Capital <i>Gazette</i></a>, a former Anne Arundel County
(MD) county executive, who was convicted early this year of a
misdemeanor for misconduct in office, wants to run for office again,
despite the judge ordering, as part of the criminal penalty, that he
not be permitted to run for office for five years.<br>
<br>
The former official's arguments in an appeal to the conviction, solely regarding the ban on
his running for office, are (1) that the language in the criminal
provision was overly vague, preventing him from knowing that he was
committing a crime, and (2) that the
court lacked the authority to ban him from running for public
office.<br>
<br>
<a href="http://www.baltimoresun.com/news/opinion/oped/bs-ed-leopold-20131216,0,…; target="”_blank”">A
Baltimore <i>Sun</i> commentary this week by iSolon.org's president, J.
H. Snider</a>, notes that
many elected officials, including the county executive's predecessor,
have their security detail do personal and political work for
them, and are never prosecuted. He also explains that, due to a
debilitating back operation, the county executive was forced to
depend on those around him in unusual ways, such as changing his
urinary catheter bag.<br>
<br>
But the problems go well beyond these, and are much more general in nature.<br>
<br>
<b>Best Practices</b><br>
From a government ethics viewpoint, the biggest problem here is a
lack of best practices. Because there are no generally accepted
best practices, Anne Arundel County, despite having one of the best
ethics programs in the state, has no provision prohibiting the
misuse of public resources, including public personnel. Therefore,
what should have been a government ethics issue handled by the
county's own ethics program turns into a state prosecution, which
puts the county executive into the hands of a prosecutor who might
have been acting for partisan reasons and into the hands of a judge
whose powers are far broader than an ethics commission.<br>
<br>
<b>The Criminalization of Government Ethics</b><br>
The other problem here is the state's criminalization of ethical
misconduct. Although the crime is only a misdemeanor,
criminalizing ethics gives judges the discretion to imprison the
official (which also happened here), fine the official (in this
case $75,000), and prevent the official from running for office.<br>
<br>
On the other hand, since it is difficult to prove most ethical
misconduct, and prosecutors tend not to pursue such charges to the point of a conviction,
criminalizing ethics tends to mean little actual enforcement.<br>
<br>
Elected officials criminalize ethics to make it look
like they're being tough on ethical misconduct, while knowing that
the likelihood they will be prosecuted is very small. Misuse
of resources happens to be the easiest ethical misconduct to prove. Misuse of personnel
often leads unhappy subordinates to file complaints, and the misuse of machinery or
computers can be difficult to hide.<br>
<br>
<b>Treating an Illness or Disability As a Conflict Situation</b><br>
One final problem here is holding on to public office when one is
unable to fulfill one's public obligations. If an operation or
illness will limit an official for only a short period of time,
there is little problem. But if it means that the official will be
unable to handle many aspects of his job and to depend on others,
then the official needs to treat this as a conflict of interest
and get input from colleagues and from the ethics commission to
deal with the situation responsibly and in the best interests of
the public. Sometimes this means taking a leave of absence or giving up one's position.<br>
<br>
In this case, perhaps the county executive could fulfill the
obligations of his job, but only with either a nurse or the
nursing services of his security detail. If this is the case, he should
have either requested the funding of a nurse or asked the ethics
commission (or, in this case, since there was no relevant
local provision, the council) for a waiver, so that the security detail
could help him with basic needs, such as his catheter bag and
getting food for him. Then everything would be open and publicly approved.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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