Citizens and the Advisory Opinion Process

I've always felt torn with respect to whether citizens should be allowed to ask for advisory opinions that have to do with local government officials, as can be seen in the advisory opinion provision and comments in the City Ethics Model Code Project.

On the one hand, advisory opinions are generally seen as dealing with the requestor's conduct, which I think is why most ethics codes limit requests to city officials and employees, although, inconsistently, not limiting their requests to their own conduct. In addition, it could create a burden on an ethics commission to have citizens asking for formal opinions about any suspected conflict situation. On the other hand, it could prevent a lot of unethical conduct.

This issue has become controversial in Sioux Falls, SD, according to a couple of recent articles in the Argus Leader (1 and 2). The city council wants to disallow citizens from requesting advisory opinions. The ethics board wants to continue allowing this practice.

Council members are concerned that such requests are used for political purposes, because advisory opinions are not required to be confidential. "Once it becomes public that the ethics board is reviewing a matter, they say, the officials in question automatically come under suspicion of having done something to violate the code of ethics." Council members point out that citizens can instead file a complaint.

But that can only occur after the damage is done. The principal goal of an ethics program is to prevent misconduct, not penalize it. In addition, the confidentiality problem can be easily fixed by making requests for advisory opinions confidential just like the filing of complaints.

The ethics board feels that advisory opinions are an important avenue for the public to question the conduct of city officials.

After looking at the last two years' worth of the Sioux Falls ethics board's advisory opinions (2007, 2008), my inclination is to agree with the ethics board. In 2008, three advisory opinions were requested. One is, curiously, listed as confidential, with no information about the requestor or the ethics board's response. A second was requested by a citizen, and involved two council members (who were found not to have a conflict); this was, most likely, the cause of the council's consternation. A third was requested by a city employee, but it involved officials, so it may just as well have been requested by a citizen.

In 2007, four advisory opinions were requested, two by citizens; one by the mayor, but about elected officials in general and members of the Park Board; and a fourth by a police officer about himself (whether to accept a VFW award).

The first thing one learns by looking at these two reports is that city officials and employees are not asking for enough advisory opinions concerning their own behavior, which is supposed to be the principal use of the advisory opinion process.

The second thing one learns is that citizens are more involved in the process than city officials and employees. As the ethics board says, their role is important. Were officials and employees more interested in the ethics board's advice, the role of citizens might be very small.

Everything can be abused, but making advisory opinion requests confidential can remove the great majority of possible abuses of the advisory opinion process. The rule could be that if a requestor publicizes the request before the advice is given, the ethics board will not grant the request. This is harder to do with complaints, because complaints involve actual conduct, and it is important to look into it if there is any possibility it is unethical, even if a complainant breaks the confidentiality rule.

Finally, there are problems with the formal advisory opinion  process. It is valuable to provide guidance for requesting officials and everyone else. But it is slow, and events often move quickly. And in this era of downloading music whenever we want to listen to it, it is hard for many people to contemplate waiting a month or two for a response. For this reason, informal advice from an ethics officer is something worth considering as a supplement to the formal advisory opinion process. This is why paragraph 2 of the City Ethics Model Code advisory opinion provision provides for such an ethics officer.

Robert Wechsler
Director of Research-Retired, City Ethics

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