Trying to Do Too Much in an Ethics Code
One problem local governments have in drafting ethics codes is that
they want it to be too many things, to serve too many purposes. They
want it to be an aspirational code of conduct, making local government
more civil and government officials more honest and fair. They want it
to make officials follow all relevant laws and constitutional
provisions. And they want it to deal with conflicts of interest, that
is, with the situations where personal interests may be placed above
the public interest.<br>
<br>
The <a href="http://www.countyofamherst.com/egov/docs/1238777254_239166.pdf" target="”_blank”">proposed
ethics code in Amherst County </a>(VA) does exactly this (the code is
attached (see below; the attachment is searchable) as well as linked
to). And like the codes of many other local governments, this code does
not show that the county government understands the distinctions
between these three goals, nor the problems caused by throwing them all
together in one code.<br>
<br>
<span>Problems with Such Codes</span><br>
There are two principal sorts of problem. One is that trying to do too
much means that the conflict of interest part of the ethics code --
which is all that can be reasonably be enforced in a formal manner --
takes a back seat, and is seriously inadequate. In Amherst County, for
example, the conflict of interest part of the code requires no annual
disclosure, provides for no training or advisory opinions, and has no
independent enforcement. And most of the conflict provisions are no
less vague than the aspirational provisions. The result is a lack of
clear guidance.<br>
<br>
The second sort of problem is that the county board of supervisors is
given an impossible job to fulfill. Not only must it deal with conflict
of interest allegations relating to its members as well as to its
colleagues on the county's other boards and commissions, but it must
also deal with allegations against all these people of incivility,
unfairness, personal attacks, failure to perform duties, poor
motivations behind decisions, failure to share all known information,
administrative interference, undue influence on other boards and
commissions, lack of support for a positive work environment, and
noncompliance with any local, state, and federal law, as well as with
the state and federal constitutions.<br>
<br>
The result of this confusion of aspirational, legal, and conflict of
interest purposes is a poor conflict of interest code, an enormous
burden placed on the county board of supervisors, and many disputes
treated self-righteously as questions of ethics.<br>
<br>
<span>The Inconsistency of Such
Codes</span><br>
When you try to do too much, the result is serious inconsistencies or
internal contradictions. For example, Paragraph 3 requires that board
and commission members refrain from verbal attacks on the motives of
other members, but the code welcomes formal allegations that turn
administrative, procedural, and political issues into ethical issues,
which are generally perceived as dealing with the motives of officials.
In fact, paragraph 6 specifically raises the issue of officials' motives, making them the basis for ethics allegations (personal attacks?), by
requiring officials to base their decisions on the merits, rather than on
"unrelated considerations," which would include any motive, personal,
political, or otherwise.<br>
<br>
Another example is that the supervisors must get involved in board and
commission ethics (they can even remove board and commission members),
despite the fact that they are required by paragraph 15 not to unduly
influence these "independent" boards and commissions. The possibility of being removed for unethical conduct will certainly influence a board member.<br>
<br>
<span>Aspirations</span><br>
Aspirations are important to government. That is why the <a href="http://www.cityethics.org/mc/full" target="”_blank”">City Ethics Model Code</a>
includes the excellent American Society for Public Administration
aspirational code. But this aspirational code is carefully separated
from the conflict of interest provisions, which are enforceable.
Aspirations are not enforceable. If they are allowed to be enforced,
they open up cans of worms.<br>
<br>
<span>Civility</span><br>
Civility is also important to government, and it could be argued that
incivility involves officials placing their personal interests above
the public interest. But many of the most selfish and dangerous
officials are outwardly very civil. It is much easier to be civil when
you wield the gavel.<br>
<br>
And there are times that incivility is not only acceptable, but
required. Anyone who has served on a board whose chair uses his or her
position to prevent debate of important issues, for example, knows that
such a person has no respect for civility, but will stomp all over it.
There are, sadly, times when officials must be interrupted because, for example,
they refuse to recognize members of the board or members of the public.
There are even times where officials need to be shouted down.<br>
<br>
Officials squabbling is an ugly thing to see. But so are meetings where
a majority rushes through important matters without debate, without
transparency, without respect for anyone else. Yet acting
professionally and with civility throughout.<br>
<br>
Rules about civility, if
they must exist, should appear in a board's bylaws or rules of conduct,
not in an ethics code, at least not in the enforceable part of the code.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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