A Miscellany
<b>City Attorney Ethics Enforcement in San Francisco</b><br>
<a href="http://www.sfgate.com/bayarea/article/Ex-SF-Supervisor-Yaki-heads-off-s…; target="”_blank”">An
article in the San Francisco <i>Chronicle</i> this week</a> says that the
city attorney filed a lawsuit against a former member of the board
of supervisors (the city's legislative body) who acted as a
lobbyist, but failed to register (in arguing that he was acting as an
attorney, the supervisor pointed to an unfortunate exception in the lobbying law,
for professionals when they are "performing a duty or service that
can be performed only by an attorney, an architect or a
professional engineer." There is now talk of amending this
exception.).<br>
<br>
The article says that the lobbyist registration provision "is routinely
ignored and enforcement is rare. The Ethics Commission ... has
dismissed 12 of the 15 complaints for unregistered lobbying since
the law took effect, according to commission records. The other
three resulted in settlements with combined fines of $10,750." The
top sanction is $5,000 per incident; the city attorney alleged that
there were 70 incidents.<br>
<br>
In this case, the former supervisor has offered to pay a $75,000
fine to settle the case, but without admitting that he had done
anything wrong (the settlement is attached; see below).<br>
<br>
The city attorney is quoted as saying, "Like others, I have been
concerned with the fact that it appears that our ethics laws were
perhaps not being enforced as vigorously and as broadly as they
should have." In fact, the former president of the board of
supervisors had filed an ethics complaint with the EC on this very
matter three months before the city attorney filed his suit. It's
not clear whether any decision had been made by the EC, since the EC's website is abominable (for instance, the most recent press release is from 2008).<br>
<br>
It is generally inappropriate (and very expensive; the complaint was
468 pages long) for a city attorney to get involved in the
enforcement of ethics laws, and it is not a best practice to allow
ethics settlements that do not require admission of an ethics
violation. However, if the EC is not doing an effective enforcement
job, because it lacks the personnel or for any other reason, it is
acceptable for enforcement to be done by other authorities, whether
criminal or civil, local, state, or federal. I don't know enough to
say whether the city attorney's involvement in this case, at this
point in the case, was appropriate, but I do hope that this will
allow the lobbying registration requirements to be better enforced
in the future.<br>
<br>
<b>An EC Recommending Changes to Prevent Ethical Misconduct</b><br>
Attached is a valuable advisory opinion from Honolulu's ethics
commission, in a case where the manager of the water board entered
into contracts with the water board about a year after leaving his
position. The opinion carefully goes through the application of
several ethics provisions to the facts, and finds that there is no
evidence of an ethics violation. To some extent, this is because of
the limitations of the post-employment provisions, which allow former employees to
contract with their agency. It shows how important it is to make it
clear that this cannot be done, and to especially prohibit recent
subordinates from sitting on contract selection boards when a former
employee is bidding.<br>
<br>
What is most valuable about this opinion is that it does not stop at
the finding of no violation. It recognizes that there were problems
in the procurement process, and recommends that the city auditor and
the water board together review and make "reasonable process
changes" in five areas. It is important that ECs recognize that
although their authority may end with a decision, it has the
obligation to help prevent further problems by sharing the insights
it gained in its investigation and making recommendations to the
proper authorities to look into them and make appropriate changes.<br>
<br>
<b>Investigating Online Allegations</b><br>
According to <a href="http://www.troyrecord.com/general-news/20140221/ethics-commission-to-in…; target="”_blank”">an
article yesterday in the Troy (NY) <i>Record</i></a>, Troy's ethics
commission, after receiving a request from a city resident,
discussed media reports of a council member visiting the state
liquor authority to advocate for a local night club that had had a
recent incident, and decided to investigate the matter. It also
discussed the council president's alleged financial interest in the night club, which
had been reported online and might be relevant to the investigation.<br>
<br>
The council president went public with a denial of any interest in
the nightclub, but instead of letting the EC simply dismiss the
investigation with regard to him, he expressed his concern that the EC
would investigate something based on online information, and
referred to the investigation as “a witch hunt," adding,
“Unfortunately, I think those actions make a mockery of [the
commission] by not looking into it beforehand.”<br>
<br>
The EC chair said that the EC was simply going to verify whether
whether the allegations were true. That is, after all, its job.
The fact that it made this public before investigation is unusual,
but as long as it acts quickly, it will only clear the air about
the council president's involvement, something that the
blogosphere could not do. It is the role of an EC not only to find officials in violation of an ethics rule or involvement in someone else's misconduct, but also to clear them of allegations, whether made in a formal complaint or made in the news or online media. Officials need to understand that this helps them, at least if it is done in a timely and responsible manner.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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