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Declaration of Policy, Purpose, and Obligations

Posted Mon, 2006-11-27 09:48

This is the place to comment on, discuss, and share alternative content and language relating to the declarations of policy that can usually be found at the beginnning of municipal ethics codes. Most declarations are very short and often ignored, since they cannot be enforced. But they are important in showing the community why ethical conduct is more important than just being good and fair. And the forumulation of such a declaration, and the discussion of its language, can be important occasions for looking at a community's ethical aspirations and the sort of ethical environment it desires.

Please share your experiences with the formulation and value of declarations of policy, including best practices as well as problems. Also see "Aspirational Codes" for a related discussion.

Declaration of Policy, Purpose, and Obligations

The proper operation of our city's government requires that public officials and employees act as public servants: courteous, impartial, honest, open, and responsible to the city's residents; that they act as fiduciaries entrusted with and responsible for the property and resources of the community; that they make governmental decisions and policies in the proper channels of the government structure, free of coercive or other improper influence; and that they use their office and employment in the best interests of the city rather than for personal interests, whether their own interests or those of their family, friends, or business and political associates.

It is central to gaining and retaining the public's trust in our city's government that public servants seek to avoid even the appearance of impropriety. Fulfilling one's role as public servant sometimes means sacrificing rather than gaining opportunities.

This code focuses on conflicts of interest, which affect the decisions of government officials and employees in ways that are unfair both to the community and to individuals and entities who lack special relationships with our city's officials. When public servants make decisions that are not or do not appear to be impartial, this seriously undermines public confidence in government.

While the vast majority of municipal officials are well-meaning, being well-meaning is not enough. It is important that officials understand the conflicts they confront every day, appreciate their fiduciary obligations to city residents, and recognize the importance of preventing conflicts from occurring, disclosing conflicts when they arise, and withdrawing from any involvement in a matter where they have a conflict (recusing themselves).

Nothing is more important to public trust than having public servants err on the side of disclosing every possible conflict and recusing themselves even where they feel certain they can act impartially.

The purposes of this ethics code are:

(a) To establish standards of ethical conduct - especially those dealing with conflicts between personal interests and those of the city - for city officials, employees, consultants,* candidates, and those who do business with the city;

(b) To provide clear guidance with respect to such standards by clarifying which acts are allowed and which are not;

(c) To promote public confidence in the integrity of our city's governance and administration;

(d) To provide for the consideration of potential ethical problems before they arise, to minimize unwarranted suspicion and to enhance the accountability of our city's government to city residents; and

(e) To provide for the fair and effective administration and enforcement of this code.

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Introduction

Posted Mon, 2006-11-27 09:39

Below is Robert Wechsler's introduction to the Model Municipal Ethics Code. This is the place to comment on issues raised and positions taken in this introdcution.

Introduction

Since most cities already have an ethics code, why is there a need for a model code? Because, as Mark Davies has so effectively argued, a poor ethics code, one that seems to be something it is not, is worse than no ethics code at all. One need not begin with a comprehensive, perfected ethics code, but a code that is lacking one or more essential elements will likely not fulfill the goals of creating a code and will mislead people into thinking their town has an effective ethics program. Formulating a poor or mediocre ethics code, especially when its purpose and provisions are not openly and honestly discussed, is unethical.

The essential elements of a municipal ethics code are:
(i) that it be clear and comprehensive, providing clear guidance to city officials, employees, contractors, and citizens;
(ii) that it provide for three kinds of sensible disclosure of interests: an annual disclosure statement, disclosure when a conflict arises (transactional disclosure), and disclosure when someone bids for business or requests a permit (applicant disclosure); disclosure is the democratic way of letting people know about possible conflicts of interest;
(iii) that it provide effective administration, featuring an independent ethics commission with teeth, which gives swift advisory opinions, which has a monopoly on interpreting and enforcing the code, which can give waivers for exceptions, and which provides training for all city officials and employees, as well as for everyone who does business with the city; and
(iv) that it provide whistle-blower protection so that city employees (the people who know what's going on) and others will be able to report violations without endangering their jobs and pensions.

The other essential element of an effective ethics code is that it be the center of an ethical environment. Rarely is the passage of an ethics code the result of an ethics environment. More commonly, it is a response to a scandal or series of scandals in an environment where unethical behavior has been accepted, up to a point. In such instances, work on a new or revised ethics code can be an exercise in political oneupmanship.

But the writing or revision of an ethics code can also be an occasion for, and centerpiece of, the founding of an ethical environment. The discussion of a new or improved ethics code can help a community determine its goals and ideals, and identify conduct that is consistent and inconsistent with an ethical environment. It can also provide guidance that will help people in and out of government think and act more ethically. Out of this process should come, besides the code itself, an ongoing ethics education system and an organized as well as informal system of rewarding ethical behavior and the examination of issues through an ethical as well as a practical lens.

If a community's leaders intend an ethics code to be a bandage, the ethics system will not function properly. If it is a true reflection of community leaders' aspirations and ideals, then the ethics code will not only function as part of an all-encompassing ethical environment, it will be almost unnecessary except as a process that keeps inspiring and motivating officials and employees to think and act ethically.

Cities will want to make changes in the language of certain of the model provisions, but they should be careful that the changes do not undermine the purpose and spirit of the provision, unless that is the stated intent. Also, the language in this model code is intentionally as readable as possible. Many lawyers will say that the language must be more formal, but the question is, Which is more important: the ability of ordinary municipal employees and officials to understand a code that guides their ethical conduct, or the preference lawyers have for familiar, usually more complex or vague terminology?

Few municipalities will want to include everything in this model code, but it is definitely worth discussing all the provisions. Certain provisions that may seem expendable will not seem that way after deliberation among a number of people. For example, it can be difficult for a city's leaders to allow an ethics commission to have the power to not only reprimand politicians and administrators, but even fine or suspend them. When there is no public discussion, ethics codes invariably withhold this power from the ethics commission, or do not even create an ethics commission at all, but have a political body handle ethics matters.

And yet the most comprehensive ethical requirements have little value if an ethics commission has no teeth, that is, if it cannot enforce the code but can only make recommendations to elected officials. Since elected officials, those whom they appoint, and their friends and enemies constitute the great majority of the people who will be brought before an ethics commission, involving officials at the end of the process effectively makes the entire process a political one. Doing this announces to everyone, in and out of the government, that those who are friendly with elected officials are likely to get away with unethical conduct (whether this is true or not). Therefore, citizens will be less likely to file ethics complaints, and officials will be less likely to follow the code's requirements.

The fact that elected officials like to have the final say is itself a conflict of interest, because it is certainly not in the public interest to give them this final say. The more independent the ethics commission, the more it will be trusted by city residents, the less it will be used for political purposes, and the more respect its decisions will be given. When an ethics system is not perceived as independent, and ethics accusations are politicized, the ethics system can actually undermine the very confidence in government it is supposed to protect.

Municipal officials and employees should not be expected to be all-knowing saints. The basic rule of any ethics code is simple and requires little knowledge: If you're not sure there is a conflict that could be seen as affecting your decision, ask for advice or withdraw from dealing with the particular matter. In other words, if doing anything seems to be wrong or to look wrong, don't do it. No one's participation in a particular matter is indispensable.

The provisions of this model code have been organized to make it easier for city officials and employees to understand what is expected of them. First come the more general ethical guidelines, which are not enforced by the Ethics Commission (however, people may ask the Ethics Commissions for advisory opinions concerning these guidelines). Second come the conflict of interest rules that are enforced by the Ethics Commission. Next come the disclosure rules, exceptions, and penalties for violation of the code. And then comes the Definitions section. Wherever a defined term is used, there is a star, so that people know that they can check the Definitions section.

The second half of the code deals with the code's administration. The provisions of this part contain the necessary information about filing an ethics complaint, the formation, powers, and responsibilities of the Ethics Commission, and the enforcement of the code. This part comes last because it is primarily of interest to people who want to file a complaint. Most people will never have to read this part. This means that this part can be more technical, which it needs to be due to the requirements of due process, that is, protections of the rights of those against whom ethics complaints are brought.

Throughout this model code there are comments following sections or subsections. There are two kinds of comment: (i) comments of the author intended for those who will consider this model code when writing or amending their city's ethics code; and (ii) comments intended to be part of the ethics code, that is, comments intended for the community, to clarify the code. Comments of the author are italicized.

This model code was originally based on a model code written by Mark Davies, which appeared in "Keeping the Faith: A Model Local Ethics Law-Content and Commentary," 21 Fordham Urban Law Journal 61 (1993). Mr. Davies is Executive Director of the New York City Conflicts of Interest Board and Adjunct Professor of Law at Fordham University School of Law. I have also consulted many other model and municipal ethic codes.

Robert Wechsler
Research Director, City Ethics

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City Ethics Model Code Project

Posted Mon, 2006-11-27 09:34

This is the place to comment on and discuss the City Ethics Model Code Project. Topics might include the project's format, the user-friendliness of the online format, the nature and tone of discussions, whatever.

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Municipal Ethics Codes: General Discussion of Their Importance, Types, and Their Role in a Municipal Ethics Program

Posted Mon, 2006-11-27 08:18

City Ethics' Model Code Project assumes that an ethics code is central to municipal ethics programs.

But this raises several issues. How important is an ethics code to an ethics program? Can an effective ethical environment be created without any sort of written ethics code? If an ethics code is necessary, should it be aspirational or in the form of a law (or, as in our Model Code, both), and if in the form of a law, should it be enforceable?

This relatively high-level, philosophical discussion is more important than it may at first appear, because many municipal leaders do take the position that ethics codes are unnecessary, that ethical people will be ethical without them, and that they won't stop unethical people. People also feel that creating an ethics code is an admission that there are ethical problems in one's city or county (as if this were an admission of guilt rather than an acknowledgment of day-to-day reality).

Those who believe in the importance of ethics codes need to have effective responses to their contentions. This is a good place to list and discuss them.

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Full Text of Model Ethics Code

Saturday, November 25, 2006 - 23:28

Model Code: Section #100 Subsection #1- Conflict of Interest

Friday, November 24, 2006 - 14:36

§100. General Conflict of Interest Provisions.

1. Conflict of Interest.

An official or employee* may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal* or financial benefit*, not shared with a substantial segment of the city’s population, for any of the following persons or entities:

  1. himself or herself;
  2. a member of his or her household*, including a domestic partner* and his or her dependents, or the employer or business of any of these people;
  3. a sibling or step-sibling, step-child, parent or step-parent, niece or nephew, uncle or aunt, or grandparent or grandchild of either himself or herself, or of his or her spouse or domestic partner, or the employer or business of any of these people;
  4. an outside employer or business* of his or hers, or of his or her spouse or domestic partner, or someone who works for such outside employer or business;
  5. a customer* or client*;
  6. a person or entity from whom the official or employee* has received an election campaign contribution of more than $200 in the aggregate during the past election cycle (this amount includes contributions from a person’s immediate family or business as well as contributions from an entity’s owners, directors, or officers, as well as contributions to the official or employee*’s party town committee or non-candidate political committee);
  7. a substantial debtor or creditor of his or hers, or of his or her spouse or domestic partner; or
  8. a nongovernmental civic group, union, social, charitable, or religious organization of which he or she (or his or her spouse or domestic partner) is an officer or director.

Comment:

The central point of an ethics code is that city officials and employees should not prefer, over the public interest, their own interests or the interests of their family or business associates. There are other relationships that should be included in the above list, but cannot due to problems of defining them. These include romantic relationships short of domestic partnership, and close friends and associates.

The general rule is: If it looks to others as if you might be giving someone special treatment, or if it would look that way to others if they knew about the relationship, then you should not act with respect to that person or entity, and instead recuse yourself under subsection 3 below. It is important to give city residents confidence that their officials and employees are treating everyone the same, even when you believe that you can be totally impartial.

The most common way to define conflict of interest is as follows: No person subject to this code shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her public duties or employment. However, most government officials and employees do, on occasion, have conflicting interests. The important thing is not for them to prevent them, but rather to manage them honestly and responsibly, that is, to disclose them and to not act where there is such a conflict, no matter how impartial they feel they can be. What matters is not whether one can still act with integrity, but whether one will be perceived that way. It should be noted that even voting or making a decision against a friend or relative, in order not to seem partial, is not acting impartially, because the reason for the vote or decision is wrong: it might actually be better or more fair to vote or decide in favor of the friend.

The one thing the common approach contains which does not appear in this model code is a prohibition of outside employment where there is not a conflict with a particular government interest, but instead with the general government interest in “the proper discharge of an employee or official’s duties” (a term that, by the way, is too vague to allow for enforcement). Outside employment does not only lead to conflicts of interest as defined in this code, but also interferes with doing one’s job by affecting the official or employee’s time, energy, and focus. Volunteers are expected to have other jobs, and it is not fair to prevent low-paid employees from having evening, weekend, or holiday jobs, but many cities have rules limiting the amount and type of outside employment. Please contribute outside employment provisions which you feel are just (or unjust), enforceable or unenforceable, and explain why. Such provisions should include procedural requirements, for example, applying for formal, written permission from one’s supervisor or department head (including disclosure of any officials, employees, or contractors involved), and the written acceptance of limitations on time and place of outside employment.

There is also nothing in this model code about incompatible positions in government and parties, that is, holding legislative and administrative positions, for example, especially where one office has the power to remove or affect the other’s budget; or multiple administrative positions that stretch an official or employee too thin; or non-governmental positions that can have a great effect on government, for example, a department head who is an officer of a local political party, posing a question about his or her responsibility to all citizens vs. to party members, as well as putting him in a position of affecting who his boss will be, come the next election. Often such rules do not appear in ethics codes (often they appear in the city charter), but because they do involve conflicts of interest, they should at least be included by reference. Please say how your municipality deals with this problem, or how you think it should be dealt with.

Another common conflict provision is as follows: No person subject to this code shall accept other employment which will either impair his or her independence of judgment as to his or her public duties or employment or require or induce him or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. What does it mean to have a job that impairs one’s independence of judgment, or a job that induces or requires one to disclose confidential information? And how could it be proven that particular employment could do this? Again, this sort of provision focuses on the conflict rather than on the improper management of the conflict. It is true that a developer should not be on a zoning board, nor should a contractor be in charge of a city’s purchases, at least in the relevant area. But in and of themselves, these are not violations of the public trust (so long as they recuse themselves when appropriate; but if that is very often, they are not fulfilling the obligations of their position); they are examples of seriously poor judgment on the individual’s part as well as on the part of those who nominated or appointed that individual. In addition, when a developer sits on a zoning board, it is a sign of a poor ethics environment, whose leaders have not spoken out against so severe a conflict. Cities may want to add a provision like the following to deal with this situation:

The recusal provisions of §100(3) do not permit an official or employee to make use of recusal on a regular basis. If recusal occurs with such frequency as to give the appearance of impropriety, the official or employee is deemed to have violated the provisions of this code.

Comment: An official or employee who is forced to recuse himself or herself on a regular basis should resign from his or her position. This should also be taken into account when a position is accepted.

Another approach to conflicts of interest is to deem something a conflict only to the extent that an interest is not disclosed and the official or employee participates in the matter. This approach recognizes that ignoring a conflict is the principal problem. Such an approach can be combined with defining “conflict of interest” as doing or not doing much of what appears in §100 of this model code, as it is, for example, in Kings County (Seattle), Washington. This makes it clear that the central concept of a conflict of interest takes many forms, but it also limits conflict to particular instances, in effect, saying that all other conflicts are acceptable.

New Haven, Connecticut enumerates several examples of conflicts of interest, as well as several exceptions. This is unusual, but if done thoughtfully and responsibly (being careful not to make the examples exclusive), it can provide clear guidance. The best place for such examples is, however, not in the code itself, but in explanatory guidelines on the city website or in pamphlet form. Here is what New Haven lists:

Sec. 12 5/8-6. Exception to the conflict of interest provisions.

The following situations shall not constitute a conflict of interest under section 209 of the Charter of the City of New Haven:

  1. Where a municipal employee or public official is employed by a person who enters into a contract with the City of New Haven, where said employee or public official is not directly involved in the procurement, preparation, or performance of such contract and whose remuneration is not, directly or indirectly, derived from said contract;
  2. If the municipal employee or public official is employed by any newspaper which publishes any municipal notice, resolution, ordinance or other proceeding where such publication is required or authorized by law;
  3. If the municipal employee or public official is employed by a public utility that furnishes public utility services to the City of New Haven when the rates or charges therefor are fixed or regulated by the public utilities control authority;
  4. If the municipal employee or public official is employed by a person or business which has a contract with the City of New Haven if the total consideration thereunder, when added to the aggregate amount of all consideration payable under contracts in which said employee or public official has an interest during a calendar year does not exceed five hundred dollars ($500.00).

Sec. 12 5/8-7. Examples of an interest requiring disclosure.

In accordance with article XXIII, section 210, of the Charter of the City of New Haven, interests requiring disclosure shall include, but not be limited to the following:

  1. Where a member of the immediate family of a member of a board, commission or task force is employed by the City of New Haven;
  2. Where a member of a board, commission or task force is employed by a nonmunicipal agency the funding of which is, in part or in its entirety, provided by funds authorized by the City of New Haven;
  3. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in the application of federal, state or local funding authorized by the City of New Haven;
  4. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is lobbying for specific legislation before the City of New Haven or when said organization is lobbying for specific State of Connecticut legislation which will result in the city receiving funding which is controlled by the city board, commission or task force of which the individual is a member;
  5. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in litigation against the City of New Haven;
  6. Where a member of a board, commission or task force accepts an offer of employment, whether paid or unpaid, by the City of New Haven or by a program recommended by said task force but has not yet resigned or retired from said board, commission or task force to accept said offer of employment;
  7. Where a municipal employee or public official has a financial or personal interest in a contract which was entered prior to the time of his nomination, appointment, election or employment to said position, so long as said contract is not renewed, amended or modified subsequent to his assuming public office;
  8. Where an employee or public official seeks or obtains employment with a person, company or corporation engaged in business with the City of New Haven but has not yet resigned his position assume said employment;
  9. Where an employee or public official applies for a city program or benefit over which he has control, influence or discretionary authority.

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