Maryland Local Ethics Requirements

Anonymous

Wed, 08/01/2012 - 08:08

Ethics Codes

It's a good idea for states to encourage the creation of local
government ethics programs by drafting model ethics codes. It's also
a good idea for states to require minimal local government ethics
provisions. What is not good is model codes and minimal requirements
that are not accompanied by explanations and do not provide
alternatives and recommendations for improvements. Such codes and requirements can, among other things, provide support for officials who prefer a poor, limited, ineffective ethics program to a good, comprehensive, effective one. 
 
Problems can occur when states take other approaches, and this has
happened in Maryland, which <a href="http://mlis.state.md.us/2010rs/bills/sb/sb0315t.pdf" target="”_blank”">amended
its state ethics code</a> effective October 1, 2010, with a
requirement that local government ethics codes be brought into
compliance by October 1, 2011.

Asking Too Much 
One of the problems with Maryland's approach is that it insists
that local government requirements be at least equivalent to state
requirements for state officials. At first blush, this may seem
appropriate: what's good for state officials is good for local
officials. But there are two areas especially where this comparison does not hold. One is the idea that every local government should have its
own ethics commission, just like the state. The state is large
enough to have its own ethics commission, but smaller cities and
counties, or counties and the cities within them, may want to both
save money and ensure more expertise and independence than they could otherwise afford. 
 
The second way in which the state asks too much is its financial
disclosure requirements. State officials need to report property and
business interests outside of their municipalities, but why should
local officials? In fact, high-level state officials are generally
asked to report more than local officials. The rules should not be
the same. 
 
The disclosure requirements have been the controversial issue, of course. Many
people have criticized the state requirements on the basis that they
will scare people away from running for office or serving on
commissions. It is damaging for an ethics program to be identified
as bad for a city or county, especially when the requirements
themselves are inappropriate and imposed from outside. Local
officials need to be supportive of rather than antagonistic to the
local ethics program. 
 
Administration 
Maryland's <a href="http://www.dsd.state.md.us/comar/getfile.aspx?file=19a.04.00.00.htm" target="”_blank”">Model
Ethics Laws</a> (A and B, which don't differ all that much)
provide no alternatives with respect either to provisions or
administration. Nor do they provide any explanation of why they are pushing each particular approach or choice of language (not to mention why they have left out important elements of an ethics program). 
 
The state does not even raise the issue of EC independence. One model has the CEO appoint EC
members, the other has the CEO appoint, with legislative approval.
There is no mention of having EC members selected by community
organizations. Nor is there mention of EC staff or budget guarantees. 
 
There is nothing to make any city or county feel that it need do
more than create a volunteer EC, chosen by and dependent on the very
officials who are most likely to come before it. I understand that
the state is reluctant to require local expenditures, but it could
at least let local citizens and the press know the problems this
leads to and some possible solutions to these problems. 
 
The state also does not provide much guidance with respect to ethics
advice. The possibility of having an ethics officer is ignored, and
since all advice must be published, according to the models,
informal advice appears to be prohibited. 
 
There are no training requirements, just a Model Law provision for a
"public information and education program regarding the purpose and
implementation of this chapter," with no guidance on how to do this. 
 
You would never know from the Model Laws that training and advice
are the most important parts of an ethics program. 
 
Transparency 
You would know, however, that confidentiality is extremely
important. The Model Laws provide that the only part of an ethics
proceeding that is public is a finding of a violation. If a
complaint is dismissed or there is a finding on no violation, no one will know how, why, or when. Hearings
are closed. The public will reasonably believe that the ethics process exists to protect officials, not the community. 
 
And the state leaves it to local governments to figure out what to do if the confidentiality rule is violated. Officials will argue that the complaint should be thrown out, and what basis is there to argue otherwise? 
 
Whistleblowers, Etc. 
While officials are overly protected, whistleblowers don't rate a
mention in either Model Law. There is also no mention of hotlines,
EC power to investigate and make allegations without a complaint, or
EC subpoena power. 
 
Ongoing Problem 
One problem with the state requiring equivalent provisions is that,
every time the state amends a provision, all the local governments
have to follow suit, and the state EC has to sign off. With
amendments constantly being proposed, this can be a great excuse for
ongoing delay. For example, according to <a href="https://rockmail.rockvillemd.gov/clerk/egenda.nsf/d5c6a20307650f4a85257…; target="”_blank”">a
Rockville, MD city attorney memo this week</a> (Rockville is the
state's third largest city):<ul>

On August 15, 2011, the Mayor and Council
introduced an ordinance revising the Ethics Ordinance so as to
comply with the new state requirements. The ordinance was
scheduled to be adopted on October 26, but since the State Ethics
Commission had not yet reviewed the proposed ordinance, the Mayor
and Council deferred adoption but requested additional changes.
The requested changes were made and the Mayor and Council reviewed
the revised ordinance at its meeting of December 12, 2011. 
 
During the 2012 legislative session, there were
several amendments to the State ethics provisions that were
introduced again, delaying the Mayor and Council's action on the
pending amendments. None of the amendments that would have
affected the City's pending ordinance were passed. 
 
The City has now received comments from the
legal staff of the State Ethics Commission and the proposed
ordinance has been revised to address these comments....</ul>

Read the rest of the memo, and you will see how complex it is to
follow the state rules, even at this late stage in the process
(nearly a year after the revisions had been required to be made). 
 
Conclusion 
State ethics rules should have
requirements, certainly, but the focus should be on guidance and
the provision of alternative approaches. The guidance should be
not simply toward following the law, but toward establishing the
best and most affordable ethics programs across the state.
Regional and countywide programs should be encouraged, not ignored.
The advantages of EC independence should be discussed as well as the
ways of providing this independence. Similarly, the importance of EC
initiative and subpoena power. And transparency should be provided except in the
early stages of an ethics proceeding. Local governments should be told that transparency is an important part of government ethics. Otherwise, they'll think confidentiality and secrecy are. 
 
What Maryland has done is overly legalistic, focusing on the "law"
part of an "ethics law." Although it at least goes beyond some
states, whose models say almost nothing about administration,
Maryland should take a different approach, focusing on ethics
programs, training, advice, independence, and initiative rather than
the difference between such things as "equivalent" and "similar"
provisions. 
 
The State EC also has to make very public the failure of any local
government to establish an ethics program. Its <a href="http://ethics.gov.state.md.us/localgov.htm" target="”_blank”">page on local
government ethics law activity</a> has a link to a page entitled <a href="http://ethics.gov.state.md.us/Local%20Government%20-%20Municipal%20Corp…; target="”_blank”">"Municipal
Corporations
With Local Ethics Provisions"</a>, but this page only says which
local governments are exempted from complying, not which ones have
not, like Rockville, complied. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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