David A. Marcello, the Executive Director of the Public Law Center
at Tulane University Law School in New Orleans, has been keeping
close tabs on New Orleans' troubled ethics program. In 2011, <a href="http://www.law.tulane.edu/uploadedFiles/Institutes_and_Centers/Public_L…; target="_blank">he
published a report</a> on how Hurricane Katrina (2005) led New
Orleans' officials to turn a moribund ethics program into one of the
best local government ethics programs in the U.S., at least on
paper. Marcello chaired a committee that led to the creation of New
Orleans' ethics program, and he served as pro bono counsel to the
ethics board from 2007-2009, before it had the budget to pay for
counsel.<br>
<br>
Four years later, he has published <a href="http://www.documentcloud.org/documents/2162769-david-marcello-on-ethics…; target="_blank">an
updated report</a> that shows the flaws in the program and the
problems that have arisen in the implementation of the laws
(Disclosure: I critiqued the report just before it was published,
and a couple of my comments are reflected in the final text). The
report appears online as an attachment to <a href="http://www.nola.com/politics/index.ssf/2015/07/ethics_report_on_new_orl…; target="_blank">an
article in the New Orleans <i>Times-Picayune</i> last week</a> on the
report.<br>
<br>
<b>The Inspector General</b><br>
One of the best things about the New Orleans ethics program is that the Inspector General, which investigates for the
ethics board, is selected by and shares funding
with the ethics board. This solves problems that have arisen in
cities where the IG is independent of the ethics program, where there
is often friction between the offices, and other sorts of investigations are given priority over ethics investigations.<br>
<br>
Marcello's report notes that New Orleans' success with the IG office
led to the creation of an IG in a neighboring parish (that is, city) and a
recommendation for one in another neighboring parish.<br>
<br>
<b>Enforcement</b><br>
The biggest problem with the current setup is that the ethics board
decided that it lacked the authority to enforce New Orleans' ethics
code. Marcello writes that this decision was based on a memo written
by the board's general counsel in March 2012, which ignored the
ethics board's powers under home rule, but conceded that some New
Orleans ethics provisions were enforceable by the city's ethics
board. But the ethics board apparently decided to choose between
ethics education and enforcement, and chose to focus on education.
Marcello believes that this choice did not have to be made, and that it was made without seeking public
input.<br>
<br>
The result of the ethics board's decision is that, with respect to
enforcement, it has essentially become a dismissal or referral
service, sending complaints to the state ethics board even when a
city ethics provision is the basis for the complaint. It is true, as
the ethics board chair has been quoted as arguing, that duplication
can be a problem when there is a state ethics board that has
jurisdiction over similar code provisions. But deferral to the state
ethics board is written into the New Orleans ethics code. This prevents the New Orleans board from starting an enforcement matter when the matter is before the state board.<br>
<br>
Where
there is not a state enforcement matter, duplication issues can be
worked out with the state ethics board. In fact, the state board's
executive director has said that the New Orleans board can enforce
provisions that are not addressed in the state ethics code, are more
stringent than in the state code, or that will not be considered by
the state ethics board.<br>
<br>
Marcello says that some cases sent to the state board have been
returned to the New Orleans board, but that the board has taken no
action on them.<br>
<br>
The good news is that a new general counsel should be selected soon.
Perhaps a new determination of the ethics board's enforcement
authority will lead the board to reconsider its position on
enforcement.<br>
<br>
<b>Recommendations</b><br>
According to Marcello, the ethics board has also chosen not to make
recommendations for improvements to the city's ethics code, a
responsibility it is given by the code. It has failed to do this
even with respect to enforcement authority that it says the board
lacks.<br>
<br>
<b>Transparency</b><br>
Marcello says that the ethics board has consistently failed to
follow state transparency laws, and nearly all of its members have chosen not to file
state disclosure statements, even though the state ethics board encouraged
them to do so. Transparency is an essential part of
government ethics, and ethics board members are expected to set an
example in following ethics laws and in recognizing that they are
minimum requirements. That is, ethics board members should comply
with laws unless it is absolutely certain that the laws do not apply
to them.<br>
<br>
Marcello's report ends with recommendations for the ethics board to
improve its program.<br>
<br />
Robert Wechsler<br />
Director of Research-Retired, City Ethics<br />
<br />
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