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Restrictions on Ethics Commission Membership
Tuesday, July 14th, 2009
Robert Wechsler
In yesterday's miscellany,
I talked about an ethics commission member conflicted due to having
played a role in the campaign of an official brought before the
commission. There are two ways to deal with such a conflict. One is to
deal with it like any conflict, when it arises. The other is to prevent
the conflict from occurring.
Normally, the right way to handle conflicts is the first way, when they arise. Conflicts are common, and dealing with them responsibly is central to government ethics.
But there are two differences when it comes to EC members. One is that they should aspire to a higher standard, should be above reproach. And two, their involvement in the campaign of one candidate or in the activities of one party makes them appear biased not only with respect to that candidate or party, but also with respect to that candidate's colleagues, appointees, and opponents, or with respect to that party's opponents. A politically active individual can be seen by the public as biased toward just about everyone in government, especially in a community where there is a lot of political animosity.
For example, in my town I objected to the appointment to the EC of an adviser to the first selectman (effectively, the mayor; I also advise her). Although he held no official or party position, he was closely associated with the first selectman and he often publicly criticized her opponents and their policies. If one of the opposing party's leaders were to come before the EC, no one would consider him unbiased toward them.
Ethics codes or charter provisions often place restrictions on EC members. The most common restriction is one that prevents one party from having a majority of EC members. But that does not prevent a politicized EC.
Another common restriction relates to political activities during an EC member's term. Here is Atlanta's provision:
But this does not prevent the appointment of politically active EC members. It only requires them to take a couple years off. The biases, and apparent conflicts, don't suddenly go away.
The City Ethics Model Code provision goes one step further, prohibiting officials and employees, as well as party officials and lobbyists, from being EC members, including people who have been officials and employees within the past three years.
This rule could be taken further, to include anyone who has held office in a party, acted as a lobbyist, or participated in a campaign within the past three years. But even this rule would not prevent the appointment of a mayor's adviser, for example. It's difficult to come up with a clear definition that includes all politically active individuals. We just have to do the best we can.
The principal reason for such rules, just like rules that take the selection of EC members out of the hands of officials, is to present to the public an EC that is different from all other boards and commissions, that is truly non-political and unbiased, whose members have no personal stake in what they do or relationships to the people they are asked to investigate and effectively try. Such rules make an EC more like a jury, where personal relationships are taken into account.
What if you were on an EC and no such rule existed. The EC's member are non-political, but the council replaces a member whose term is up with a council member's recent (or even current) campaign treasurer (or, say, a recent or current official)? This politically active individual knows all about local officials and sees them in terms of campaigns she's fought and disputes and power struggles; that is, in terms of loyalty and animosity. How she discusses matters is completely different than the non-political members, and it's uncomfortable for them to see how personal everything is for her. They also worry what the public will think if one or more such political individual is appointed.
If there is no provision preventing this, an EC usually has the choice of adding restrictions on its membership either in its bylaws or in rules and regulations. An EC cannot appoint its members, but it does have the ability to restrict who can be appointed, as long as the restrictions are reasonable. But it is best not to wait until the wrong sort of person is appointed. It's not good to change the rules in order to get rid of a member, and this could cause ugly divisions on an EC. It's much better to change the rules to prevent the situation from occurring.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Normally, the right way to handle conflicts is the first way, when they arise. Conflicts are common, and dealing with them responsibly is central to government ethics.
But there are two differences when it comes to EC members. One is that they should aspire to a higher standard, should be above reproach. And two, their involvement in the campaign of one candidate or in the activities of one party makes them appear biased not only with respect to that candidate or party, but also with respect to that candidate's colleagues, appointees, and opponents, or with respect to that party's opponents. A politically active individual can be seen by the public as biased toward just about everyone in government, especially in a community where there is a lot of political animosity.
For example, in my town I objected to the appointment to the EC of an adviser to the first selectman (effectively, the mayor; I also advise her). Although he held no official or party position, he was closely associated with the first selectman and he often publicly criticized her opponents and their policies. If one of the opposing party's leaders were to come before the EC, no one would consider him unbiased toward them.
Ethics codes or charter provisions often place restrictions on EC members. The most common restriction is one that prevents one party from having a majority of EC members. But that does not prevent a politicized EC.
Another common restriction relates to political activities during an EC member's term. Here is Atlanta's provision:
Members shall be prohibited from
engaging in city election political activities and from making campaign
contributions to candidates in city elections during their terms as
board members. Violations of this subsection may be punished by removal
from board membership by a majority vote of the members.
But this does not prevent the appointment of politically active EC members. It only requires them to take a couple years off. The biases, and apparent conflicts, don't suddenly go away.
The City Ethics Model Code provision goes one step further, prohibiting officials and employees, as well as party officials and lobbyists, from being EC members, including people who have been officials and employees within the past three years.
No member of the Ethics Commission may
be, or
have been within the three years prior to appointment, an appointed
official or employee of the city. Nor may a member
of the Ethics Commission hold office in a political party or be
employed or act as a lobbyist. An Ethics Commission member may make
campaign contributions but may not participate in any election
campaign.
This rule could be taken further, to include anyone who has held office in a party, acted as a lobbyist, or participated in a campaign within the past three years. But even this rule would not prevent the appointment of a mayor's adviser, for example. It's difficult to come up with a clear definition that includes all politically active individuals. We just have to do the best we can.
The principal reason for such rules, just like rules that take the selection of EC members out of the hands of officials, is to present to the public an EC that is different from all other boards and commissions, that is truly non-political and unbiased, whose members have no personal stake in what they do or relationships to the people they are asked to investigate and effectively try. Such rules make an EC more like a jury, where personal relationships are taken into account.
What if you were on an EC and no such rule existed. The EC's member are non-political, but the council replaces a member whose term is up with a council member's recent (or even current) campaign treasurer (or, say, a recent or current official)? This politically active individual knows all about local officials and sees them in terms of campaigns she's fought and disputes and power struggles; that is, in terms of loyalty and animosity. How she discusses matters is completely different than the non-political members, and it's uncomfortable for them to see how personal everything is for her. They also worry what the public will think if one or more such political individual is appointed.
If there is no provision preventing this, an EC usually has the choice of adding restrictions on its membership either in its bylaws or in rules and regulations. An EC cannot appoint its members, but it does have the ability to restrict who can be appointed, as long as the restrictions are reasonable. But it is best not to wait until the wrong sort of person is appointed. It's not good to change the rules in order to get rid of a member, and this could cause ugly divisions on an EC. It's much better to change the rules to prevent the situation from occurring.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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