North Carolina Legislature Is About to Pass a Nearly Worthless, and Possibly Dangerous, Local Government Ethics Law
In <a href="http://www.cityethics.org/node/806" target="”_blank”">a blog post</a>
yesterday, I noted that North Carolina was soon to require local
governments to pass ethics codes. I've now found out more about the
proposed law, and it is disappointing, to say the least.<br>
<br>
States have taken a variety of approaches to local government ethics.
Some have a state local government ethics law that is administered at
the state level. Some have a state local government law that requires
minimum provisions for local government ethics codes that are
administered locally. Others just have a conflict of interest provision
and, perhaps, a couple of others, without any local codes or
enforcement mechanisms.<br>
<br>
<u>What's Good About the Law</u><br>
<a href="http://www.ncleg.net/Sessions/2009/Bills/House/PDF/H1452v2.pdf" target="”_blank”">North
Carolina's proposed law</a>, which has passed the house and is about to
pass the senate, has two things going for it. One, it requires all
local government governing body members, including school board
members, to take at least two hours of ethics classes within twelve
months of election or appointment. But the ethics classes will have
nothing to do with the individual boards' ethics codes.<br>
<br>
Two, it requires each local governing body to sit down and discuss what
sort of ethics code it wants. This is a valuable exercise, if it is
taken seriously.<br>
<br>
<u>The Law Itself</u><br>
But it would be even more valuable if there were some concrete
guidelines, including a list of possible provisions. The only guidelines -- or requirements, if you
can call them that -- are unbelievably vague, for the most part
worthless, and sometimes even dangerous. Here they are:<br>
<br>
<div>The resolution or policy required by
subsection (a) of this section shall address at least all of the
following:<br>
(1) The need to obey all applicable laws regarding official actions
taken as a board member.<br>
(2) The need to uphold the integrity and independence of the board
member's office.<br>
(3) The need to avoid impropriety in the exercise of the board member's
official duties.<br>
(4) The need to faithfully perform the duties of the office.<br>
(5) The need to conduct the affairs of the governing board in an open
and public manner, including complying with all applicable laws
governing open meetings and public records.<br>
</div>
<br>
<u>What's Wrong with the Law</u><br>
Provision (1) goes without saying, which is one reason ethics codes don't usually say
it. In addition, such a provision can cause problems. There are many laws that are way outside the jurisdiction and expertise of local governing boards. Or take a charter requirement that the council do X, but no one has done X for
years, for good reason. Charters are full of such provisions. So
citizen A, who supports the council minority, brings a complaint
against the council majority for not following the charter provision.
Is this an ethics issue, or a political issue? This sort of political
issue, in various guises, happens all the time. These are three reasons why I do not
support putting this provision in ethics codes.<br>
<br>
(2) provides no guidelines. What does "independence" of a board
member's office mean? Does it mean being impartial? Does it mean not
being influenced by special interests? And "integrity" is a word that
can take an enormous range of meanings. Does it include conflicts of
interest, a term that only appears, almost magically, in the education
section of the proposed law? Does it include telling the truth, not
misusing one's office, etc.? How would this provision translate into a
gift provision? Who knows. But it certainly does not require, or even
suggest, a gift provision.<br>
<br>
How does (3) differ from (2)? It certainly provides no clearer
guidelines. And note that the use of the word "impropriety," usually
used in an ethics context in the term "appearance of impropriety," does
not refer to appearances. Appearances of impropriety are, apparently,
okay.<br>
<br>
Does any governing body really want to get into (4)? Do they really
want to sit in judgment on whether their fellows are faithfully
performing the duties of their office? Will this be the new term thrown
back and forth in the internecine squabbles of local politics? I
wouldn't touch this provision with a ten-foot pole.<br>
<br>
(5) is great, but it's already covered by state law. It would be nice
if each governing body would take a fresh look at transparency and open
meetings laws, and decide whether they wanted more stringent
requirements for their members. But will this really happen?<br>
<br>
<u>What Local Governing Bodies Will Likely Do</u><br>
Local government boards do not want to create the wheel. If they are
required to do something, most will want to just take some provisions
and place them in a law. They'll be happy to accept (1) and (5), which
add nothing. And then they'll include the vague language of (2)-(4),
which no one can really argue with, and just forget about it. Except
when their opponents use the vague language to open up cans of worms.<br>
<br>
<u>The Limits of the Law</u><br>
There is nothing here about mayors or managers, local government employees, non-governing
body members, contractors, or others. This is a very limited law,
requiring self-enforcement (if any enforcement; it's not specifically
mentioned) by governing bodies.<br>
<br>
There is nothing here about independent ethics commissions or advisory
opinions, nothing about disclosure or conflicts of interest or recusal,
nothing about gifts, revolving doors, misuse of office or property,
confidential information, etc. This law is not even window dressing;
you can see right through it.<br>
<br>
<u>The League of Municipalities' Cans of Worms</u><br>
It will come as no surprise what organization is behind this law:
the North Carolina League of Municipalities. Here's what <a href="http://www.nclm.org/Legal-legislative/LegisBulletin042409.htm" target="”_blank”">the
League recently said</a> about the law:<br>
<br>
<p>Our thanks to
the sponsors for working with us on this bill. League supports in
its current form. ...</p>
<br>
And of course the NCLM is first in the state law's list of
organizations that can provide ethics education. But does the NCLM
understand that, despite the fact that they have been successful in
creating what might be the weakest state local government law in the country, they
might be opening up some seriously ugly cans of worms? The state's
local governments won't have real ethics codes. But the squabbles of
governing boards can now take on the legitimacy of ethics arguments.<br>
<br>
When a school board member pushes an unpopular cause, his fellows can
point out that by missing the last two meetings, he has not faithfully
performed the duties of his office and is therefore in violation of the
school board ethics code. That'll shut him up! Words such as
"integrity," "independence," and "impropriety" will become watchwords
tossed around with renewed meaning, in fact, any meaning an official
wants to give them.<br>
<br>
<u>What I Hope Will Happen</u><br>
I hope that each local government governing body will ignore the
language of this law and use it as an opportunity for true ethics
reform, for an ethics code with disclosure and independent ethics administration that
the town or city can be proud of. But this will happen no thanks to the
state legislature or the NCLM.<br>
<br>
<u>Good News from Winston-Salem</u><br>
While this law was making its way through the legislature,
Winston-Salem was working on something more like a true <a href="http://www.ci.winston-salem.nc.us/Assets/CityOfWS//Documents/City%20Man…; target="”_blank”">ethics
code</a>, passed on June 15. It's a minimal code, but it does have the
basic provisions and it does have training and an enforcement
mechanism, with an ethics officer for opinions and investigations, but
no ethics commission (the city manager and city council do the
enforcement). I hope North Carolina's councils will look more to
Winston-Salem than to the state law when they sit down to fulfill
their ethics requirements.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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