Local Government Attorneys - More or Fewer Ethics Rules?
Recently, the Jackson County (MO) <a href="http://www.cityethics.org/node/674" target="”_blank”">county legislature decided</a>
to exclude not only county legislature members from its new ethics
code, but also county attorneys. This exception is hidden square in the
middle of a 58-page code:<br>
<br>
<div>This chapter applies to all public
servants, as the term is defined in this chapter, except licensed
attorneys at law acting in the course and scope of their duties as
such, who are subject to the rules of professional conduct promulgated
by the Supreme Court of Missouri.<br>
</div>
<br>
Presumably, the county legislature, or the attorneys who drafted the
code, felt that the rules of professional conduct provide sufficient
protection for county residents, or that the rules and the ethics code
would either contradict each other or could create problems of
enforcement, with two boards having jurisdiction over county attorneys.<br>
<br>
The Rhode Island Ethics Commission, in <a href="http://www.ethics.ri.gov/advisory/individual/2003/2003-049.htm" target="”_blank”">a
2003 advisory opinion</a>, disagreed with this view. An assistant town
solicitor asked for an advisory opinion regarding the ethics
commission's jurisdiction over attorneys due to the judiciary's
jurisdiction. The commission referred to its "power to enact
substantive ethics laws that apply to all government officials and
employees without regard to outside employment or regulation by other
bodies." Lawyers are no different than other professions with their own
professional ethics codes. The ethics commission also found that there
is no separation of powers issue with the judiciary.<br>
<br>
These are the legal issues. But what about the ethical ones? The local
government attorney has the most difficult ethical problems of any
local government official. Many of them represent both the executive
and legislative branches. They are often faced with the issue of whom
to represent, the individual in the current position, or the position
itself. This is especially true when they are asked to either do
something they feel is not right, or to provide advice supporting
conduct they feel is not right.<br>
<br>
Many local government attorneys represent individuals and companies outside of government, and many also wear the hat of party loyalist,
with political goals that may conflict with the public
interest. And many local government attorneys even wear the hat of
ethics advisers to government officials.<br>
<br>
These potential conflicts are not dealt with well in codes of
professional conduct or in ethics codes. But whereas one would think
that a local government attorney would want the clearest possible
guidelines, many seem to want as few as possible. And yet the
appearance of such things as an attorney who represents a city in
zoning matters representing someone who sues the city in a tort action
can raise a lot of ire among citizens. People are very sensitive about
having their attorneys loyal to them.<br>
<br>
And who wants to be caught between the demands of a council and a mayor or manager?<br>
<br>
The question I would like to raise is whether it is best for the
public, as well as for government attorneys, to have more and clearer
ethics rules covering them, rather than fewer. The fact that the rules
are currently few and vague is, most likely, the choice of government
attorneys, for they either draft or review all local government ethics
codes. Does this represent responsible decision-making for the public, or even for themselves? Or is it a knee-jerk reaction that has not been sufficiently discussed?<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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