Providing Counsel for Officials in Ethics Proceedings
When should governments provide counsel for officials who have had an
ethics complaint brought against them? This has become a big issue
recently in my state, Connecticut.<br>
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<a href="http://www.cityethics.org/node/442">Click here to read the rest of this blog entry.</a>
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In March, a lawyer for the Office of State Ethics proposed a legal
opinion that would not allow lawmakers to use staff attorneys in ethics
cases. When this opinion came before the Citizen's Ethics Advisory
Board, legislative leaders sent their staff attorneys to argue against
it, and the Board voted 5-4 to reject the opinion (two of the five
votes came from former legislators, each of them appointed by one of
the legislative party leaders -- another good argument for <a href="http://www.cityethics.org/mc/ad/ec#comment-67" target="”_blank”">non-political
ethics appointments</a>). But the Board chair asked that the matter be
reconsidered in a few months.<br>
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The Senate quickly moved to protect its members by approving an
amendment to an ethics bill, which allowed public officials to accept
representation from an attorney acting as a state employee during the
investigative phase of an ethics proceeding. According to <a href="http://www.topix.net/content/trb/2008/05/use-of-state-lawyers-in-ethics…; target="”_blank”">an
article</a> in the Hartford <span>Courant</span>,
legislators have access to caucus lawyers, and top officials have staff
attorneys, but this law would not apply to the great majority of state
employees, because the Attorney General has not allowed them
representation in ethics cases.<br>
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The Senate moved so quickly, it did not even notify the Office of State
Ethics. But word got out, criticisms were made, and the House decided not to even consider the amendment,
clearly because it would seem too self-serving.<br>
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But think, too, of the position it puts government attorneys in. An official
accepts a gift he shouldn't have accepted. It comes out, and a
complaint is filed. The official chooses not to admit that what he has
done is wrong and pay the fine, so that there's no need for an
investigation. Instead, the official goes to a staff attorney,
and that government attorney is forced to represent not the public
interest (as reflected in the ethics code), but the official who has
acted against the public interest.<br>
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But of course, not all officials are guilty of the charges. For
them, Connecticut state law provides that they be reimbursed for their
attorney's fees. In this way, officials who are not guilty are
protected, and government attorneys are not put in a compromising
position.<br>
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In my town, counsel is provided for Freedom of Information proceedings.
A complaint was filed once against the First Selectman and Town
Attorney regarding an illegally held meeting.
The illegally held board meeting allowed the Town Attorney to argue at
a Town Meeting that evening, that the matter on the agenda was now
moot, and could not be discussed.
Both the First Selectman (himself an attorney) and the Town Attorney
were represented at the hearing by the Town Attorney's partner, who was
effectively Co-Town Attorney.
The conflicts were many, and all of them unnecessary, but the rules
were set by the officials who benefited from them.<br>
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My guess is that the same thing would happen in an ethics proceeding,
and that this happens in local governments across the country, because
few people understand the issues well enough to object, and most of
those who understand are biased and/or don't want to offend those who
appointed them, like the former legislators on the Citizen's Ethics
Advisory Board.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>