The Need for Ethics Commission Independence, and What Is and Isn't a Government Ethics Violation
<b>Updates below</b><br>
Anyone who doubts the need for truly independent ethics commissions
need look no further than what has been happening in Philadelphia this
week. Or should I say "this year"?<br>
<br>
I've <a href="http://www.cityethics.org/node/756" target="”_blank”">already reported</a>
on the fining of the Ethics Board's executive director, Shane Creamer,
for sharing with a reporter (off the record) confidential information
about a settlement negotiation. I lauded Creamer for immediately
admitting what might or might not have been a violation of the ethics
code's confidentiality rule. I think he showed good judgment and did
not deserve a fine. But I understand why the ethics board would not
have wanted what appeared to be at least an instance of poor judgment to go
unpunished, because then it might be attacked for having a double
standard in dealing with city officials.<br>
<br>
I also said that it is inappropriate for an ethics commission to
investigate its own members or staff for an ethics violation. But the
executive director's conduct involved not ethics, but a
second-order rule designed for ethics board members and staff. In other
words, it was a disciplinary issue. And, in any event, the board
brought in outside counsel to advise and took the executive director
off the particular case. In short, the board did everything right and
with transparency.<br>
<br>
The <a href="http://www.philly.com/inquirer/opinion/46796502.html" target="”_blank”">Philadelphia
<span>Inquirer</span> editorial staff
recognized this</a>, as well.<br>
<br>
But when you have a city council that, <a href="http://www.philly.com/philly/news/local/45073812.html" target="”_blank”">according
to an <span>Inquirer</span> reporter</a>,
is "openly hostile" to an ethics commission (due to fines against
council members for what they consider "technical" violations), even
doing the right thing provides an opening for attack.<br>
<br>
<span>Accusations Against the Ethics Board
Executive Director</span><br>
According to <a href="http://www.philly.com/philly/blogs/heardinthehall/46920092.html" target="”_blank”">a
transcript of her comments</a>, the council member who led the attack
referred to what Creamer did as "reckless behavior" that undermined the
public trust. No one could honestly refer to what occurred as
"reckless." I've rarely seen such a matter handled so professionally.<br>
<br>
She said that the ethics board was displaying a double standard because
it did not slap on the top penalty of $2,000, fining Creamer only $500.
The top penalty is not appropriate for all violations, and it is highly
questionable that there was any violation here at all. The fact is
that the ethics board bent over backwards to show that it did not have
a double standard.<br>
<br>
The council member (<a href="http://www.philly.com/philly/blogs/cityhall/46930112.html" target="”_blank”">echoed
by the mayor</a>) said that the ethics board should not have
investigated its own member. I don't agree, but the board should have
made it more clear that this was not an ethics investigation -- no one
argues that Creamer put his personal interests ahead of the public
interest -- but rather an internal disciplinary matter. Just because something appears in an ethics code does not make it an ethics matter.<br>
<br>
The council member even attacked the Committee of 70, a local good government group,
for not criticizing the ethics board. That's because, like the <span>Inquirer</span> editorial staff, it was
proud of the job the ethics board had done, and it quickly came out and
said that. The ethics board also put out a <a href="http://www.philly.com/philly/blogs/cityhall/46963977.html" target="”_blank”">press
release</a> defending its actions.<br>
<br>
<span>Understanding What Government Ethics
Means</span><br>
A central problem here is the lack of understanding of what government
ethics is. Creamer is being asked to resign because he's committed an
ethics violation, when in fact no one has accused him of having
done anything in his personal interest, nor of failing to disclose.
Confidential information is an ethics problem only when it is used to
further someone's personal, usually business, interests. What Creamer
did was purely a question of judgment, not a question of ethics. If
council members were asked to resign every time they made a
questionable judgment, would there be a council at all?<br>
<br>
<span>Ways to Undermine an Ethics
Commission, and the Need for Independence</span><br>
The Council is not limiting its <a href="http://www.philly.com/philly/news/local/47025897.html" target="”_blank”">"smoldering
distaste"</a> for the ethics board to talking down the executive director. It has failed to replace a
vacancy on the board for seven months. It has cut the ethics board's
budget. And now at least two of its members are openly asking for the
executive director's head and doing everything they can to undermine public
trust in the ethics board.<br>
<br>
What seems childish and unprofessional may soon be very effective. An
ethics board member is moving out of town this summer, which will leave
two vacancies on a five-member board. That makes it very hard to get a
quorum. Without a quorum, no one is fined (even the executive
director). If the ethics board can be made to look untrustworthy, then
maybe no one will care that it's not functional. And maybe the board
will be forced to sacrifice its executive director, and some of its
independence, in order to function at all.<br>
<br>
It is a common ploy to leave ethics commission seats open. This is why
politicians should have no say over ethics commission membership.<br>
<br>
It is a common ploy to cut ethics commission budgets when they do
things councils don't like. This is why budgets should be guaranteed by
law.<br>
<br>
No one can stop politicians from using words to attack what gets in their way. But
politicians can be prevented from taking revenge through action.<br>
<br>
<i>Update</i> (June 11, 2009): <a href="http://www.philly.com/dailynews/opinion/47751842.html" target="”_blank”">A Philadelphia <i>Daily News</i> editorial</a> today recognized that what Creamer did was not an ethics violation, because "he didn't use a public office to benefit himself." The editorial also recognized that Creamer acted ethically in reporting to the board that he might have made a mistake. Hopefully, the council and the mayor will recognize this, as well.<br>
<br>
<i>Update</i> (June 12, 2009): According to <a href="http://www.philly.com/philly/blogs/cityhall/47812057.html" target="”_blank”">a Philadelphia <i>Daily News</i> blog post</a> yesterday, the Council majority leader is still calling for Creamer to resign and is now attacking the <i>Daily News</i> for its editorial. At a Council meeting, she read a definition of ethics, failing to acknowledge that government ethics includes only a tiny part of ethics. Nor did she acknowledge that transparency is part of government ethics. And she continues to accuse the ethics board of a two-tiered approach, while asking for Creamer to resign, even though she does not appear to ask Council members to resign whenever they violate a rule.<br>
<br>
What Ms. Tasco is doing has nothing to do with government ethics. It appears to be half resentment and half grandstanding, in other words, putting her personal interests ahead of the public interest. That's what government ethics is about, Ms. Tasco.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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