Very Problematic Fort Worth Ethics Reform Proposals

Anonymous

Mon, 08/20/2012 - 07:12

City Related

In <a href="http://www.fwweekly.com/2012/08/15/chipping-away/" target="”_blank”">a
long cover story in last week's Fort Worth Weekly</a>, Peter
Gorman looked at the state of government ethics in Fort Worth and,
most important, some proposed changes to its ethics program that
take it in the wrong direction. Since it was the only article on the proposals, and Gorman
paraphrased me often (based on an interview), I was waiting for other local newspapers
to jump in and confirm what Gorman wrote. But I've only found <a href="http://startelegraph.blogspot.com/2012/08/ethics-what-ethics.html" target="”_blank”">a
short Star Telegraph blog post</a> that says what a "bang up job"
Gorman did. So, end of waiting. 
 
One of the most important facts is that the proposed changes are
coming from the city attorney. Not surprisingly, <a href="http://www.cityethics.org/content/city-attorney-wearing-too-many-ethics…; target="”_blank”">as
in Houston</a> and other cities, when the city attorney is in
charge of changes, the changes usually give the city attorney a
greater role in the ethics program. A principal change provides that the
city attorney may give ethics advice to officials and that officials who get this advice are protected from ethics enforcement.

As I have
said again and again, a city or county attorney should have no role
in an ethics program. Or, as the article quotes me:<blockquote>

Probably the number-one ethics problem in the U.S. . . . is
officials going to [city or county] attorneys for ethics advice.</blockquote>

The result is what Gorman calls a "get-out-of-jail-free card for
public officials." An official asks the city attorney whether he can
help his sister's company get a zoning permit. The city attorney
says he can. Someone files a complaint, and the official has the
defense that he followed the city attorney's advice. 
 
Why City Attorney Ethics Advice Is Wrong 
There are five reasons why the Fort Worth city attorney should not
provide ethics advice to officials. One, a city attorney is not a
neutral, independent professional (Fort Worth's is appointed and
fired by the council), In fact, a city attorney is usually very
politically involved. 
 
Two, a city attorney spends her days looking out for the interests
of the very individuals whose interests an ethics professional is
supposed to subordinate to the public interest. A city attorney has
the sort of special relationship with officials that leads to a
conflict requiring withdrawal from participation, including the
giving of ethics advice. And the relationship with officials creates an appearance of impropriety that taints any advice that appears to be in an official's personal interest, even when the advice is excellent. 
 
Three, a city attorney rarely has any training
in government ethics. In fact, attorneys generally take a legal
rather than ethical approach to conflict situations. Such an
approach says to the public that loopholes in ethics codes are okay and
technicalities are more important than the public interest in having
officials not misuse their position for personal purposes. 
 
Four, nothing happens to a city attorney who gives an official the
wrong advice, even if it seriously harmful to the city. A city
attorney is only accountable to the public through the principal
people to whom she would give ethics advice, that is, the council. They are hardly going to
take her to task for giving them advice that is
personally helpful. 
 
Five, Fort Worth has <a href="http://fortworthtexas.gov/citysecretary/info/default.aspx?id=4942">an
Ethics Review Committee</a> (ERC) that provides ethics advice.
Setting up an alternate ethics adviser allows officials to forum
shop, that is, choose the adviser they think will give them the
answer they want (usually the city attorney). Having multiple ethics
advisers also means inconsistent rulings and, therefore, less
guidance to officials. Ethics advice is supposed to be a form of
ethics training, useful not only to the official who requests it,
but also to others in the same situation. Contrary ethics advice is
confusing, and ethics advice protected by lawyer-client
confidentiality (and that is what city attorneys usually insist on,
although it is the city, through its legislative body, that actually
holds the privilege and determines the level of confidentiality) is
helpful to only one individual. 
 
Considering all this, only a city attorney who does not understand
government ethics would propose to set herself up as a source of
ethics advice. Or, as I am quoted in the article as saying, “I don’t
think any city attorney worth their salt would want to be in the
position of making ethics calls for the people he or she works for." 
 
In fact, this is the second city attorney to have made the same
proposal. See <a href="http://www.cityethics.org/content/fort-worth-council-mayor-and-city-att…; target="”_blank”">my
blog post</a> on what happened two years ago. 
 
Ethics Review Committee Independence 
Fort Worth now has a weak provision regarding the selection of ERC
members. The council is required to "develop a list of
community, civic and professional organizations which shall be
invited to make suggestions for appointments to the committee."
According to the Weekly's article, the city attorney wants to
change the "shall" to "may." 
 
There are only two reasons for this. One is to deal with possible
time problems. It can take a long time to get suggestions for
appointments, and it might be important to fill positions quickly in order
to ensure enough ERC members for a quorum. But this does not
really require a change in language. The council can invite
suggestions and give the organizations on the list (if there
actually is a list) two weeks to make suggestions. If they do not,
the council can, knowing that it has followed the law by inviting
suggestions, go ahead with approval of its own candidates. 
 
In fact, the wording is already so weak that the council is free
to ignore any suggestions made to it. It only has to ask for
suggestions, not accept them. The proper reform here is to require
the council to consider only suggestions it receives, unless it
does not receive the names of individual who qualify for the ERC.
This is the trend in EC selection, ensuring a truly independent
EC, both in appearance and reality. 
 
The only other reason for making this language change is to
dispense with the process altogether. This is a serious step away
from ERC independence. As with allowing the city attorney to
provide advice, this will undermine the public's
trust in the city's ethics program. 
 
The third proposed change, also made and not passed in 2010, is to
make advisory committee members not subject to the ethics code, so that they may sit despite serious conflicts of interest. I deal with
this issue at length in my book <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm" target="”_blank”">Local
Government Ethics Programs</a> (search for "advisory board
members"). 
 
Secrecy 
The worst thing about the proposed changes to the city's ethics
code is the secrecy that surrounds them, even though the proposals
are nothing new. Gorman wrote, "the process of changing
the ethics code is being done so far under the radar that even some
community organizations that are generally quick to howl about
ethical lapses and lack of transparency say they didn’t know what
was in the works." 
 
You can't propose to change an ethics code, especially moving away
from an EC with independence and a monopoly on advice, without a
great deal of public input. It's not only wrong, but suicidal, in
anything but the worst ethics environments, to engage in ethics
reform without the support of local good government groups and other
civic organizations, especially when they are, by ordinance,
involved in the ethics process. 
 
The proposals should be scrapped. Instead, good government
organizations should be asked for ways to provide the ERC with more
independence and authority, so that what happened two years ago does
not happen again. Dallas is seeking to improve its ethics program
via a contract to get professional ethics training and advice for
improvement of its ethics program. It's time for Fort Worth to do
the same. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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