Foreword: A Model Municipal Ethics Code

Foreword - The City Ethics Model Code Project
 

Our goal in putting online this draft model ethics code is to spark discussion of the many fundamental and specific issues surrounding the creation, improvement, and implementation of ethics programs in municipal government. Such a discussion will include not only issues and language, but also best and worst practices (successes and problems with various approaches).
City Ethics asks municipal ethics practitioners and academics to share their experiences and ideas, to make comments and ask questions, and to get involved in a discussion of the elements of an effective ethics code, the process of creating or improving one, and an ethics code's place in a city's ethics program and environment. Using the technology and ease of discussion provided by the Internet will lead to a different sort of model code that will be of great help to cities and towns, many of which are trying to recreate the wheel or turning for inspiration to the mediocre codes of neighboring towns.
The discussions in the forums on this site will themselves provide excellent information and guidance to municipalities across the country. And based on these discussions, we will put together a model code that will not only include tested approaches to and elements of municipal ethics programs, but will also contain arguments to be made in favor of, as well as against, various approaches and elements. That is, the model code's guidance will involve not only provisions, forms, and enforcement mechanisms, but also the information and rationales, along with the legitimacy, to allow politicians and citizens to show both the need for and the way to improving their cities' ethics programs or creating programs where there is none or next to none.
At the beginning of each forum (there are forums for each subject area, either one provision or group of provisions), and in some of the Comments sections, we ask specifically for information about certain issues and experiences. But please share your knowledge and ideas regarding any provision, as well as provisions not included or mentioned in this draft. And please respond to what others have said and questions others have asked.

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:

1. that it be clear and comprehensive, providing clear guidance to city officials, employees, contractors, and citizens;
2. 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;
3. 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;
4. 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 was Executive Director of the New York City Conflicts of Interest Board and an 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, Retired, City Ethics