Charter Commission

City of Portland Charter Commission Agenda Charter Commission Meeting March 30, 2022 at 6:00 pm Due to the existence of an "emergency or urgent issue", the Charter Commission & its Committees will conduct meetings by remote methods/technology at the Zoom link provided below, in accordance with the requirements of 1 M.R.S. section 403 -B and the Charter Commission Remote Participation Policy. Allow your computer to install the free Zoom app to get the best meeting experience. If you are not able to attend live, a recording will be available following the meeting in our Agenda Portal. For public comment, you will need to use the "raise your hand" feature. To raise your hand via the telephone, please hit *9. You will be unmuted by the host when it is time for public comment. 1. Zoom Information a. This meeting will be held remotely pursuant to the Remote Meeting Policy adopted by the Charter Commission and as authorized under 1 M.R.S. 403-B because of the existence of an emergency or urgent issue that requires the committee to meet by remote methods. Allow your computer to install the free Zoom app to get the best meeting experience. If you are not able to attend live, a recording will be available following the meeting. For public comment, you will need to use the “raise your hand” feature. To raise your hand via the telephone, please use *9. You will be unmuted by the host when it is time for public comment. You are invited to a Zoom webinar. Please click the link below to join the webinar: https://portlandmaine- gov.zoom.us/j/83616160481?pwd=cEsvM2NNT0I1aiswemxhOG00MlBUUT09 Passcode: 402766 Or One tap mobile : US: +13126266799,,83616160481#,,,,*402766# or +19292056099,,83616160481#,,,,*402766# Or Telephone: Dial(for higher quality, dial a number based on your current location): US: +1 312 626 6799 or +1 929 205 6099 or +1 301 715 8592 or +1 346 248 7799 or +1 669 900 6833 or +1 253 215 8782 Webinar ID: 836 1616 0481 Passcode: 402766 International numbers available: https://portlandmaine-gov.zoom.us/u/kZd02gKTx Page 1 2. Call to Order (6:00-6:05 pm) 3. Review and Approval of Minutes (6:05-6:10 pm) a. Approval of Draft March 23, 2022 Charter Commission Meeting Minutes 4. Deliberation and Vote on Governance Models (6:10-9:00 pm) a. Description: Commissioners will deliberate and vote on reforms to the basic structure of Portland's government. Relevant document(s): a. Chann-O"Brien-Buxton-Washburn-Sheikh-Yousef-Kebede Overlap b. Chann-O'Brien Proposal c. Amendment to Chann-O'Brien Proposal (amended by Commissioner Buxton, Sheikh-Yousef, Buxton, Kebede) d. Power point Older documents d. Commissioner Sheik Yusuf's governance model proposal e. Matrix comparison of two models f. Commission Barowitz's organizational charts g. Relevant research and interviews (Breaks: 7:05-7:55; 8:55-9:00 pm) Public hearing, deliberation, and vote on Code of Ethics proposal from Procedures 5. Committee (9:00-9:30 pm) a. Description: Commissioners will hold a public hearing, then deliberate and vote on this proposal. Relevant document(s): a. Proposal on Code of Ethics 6. Vote on final Language for Citizen Police Oversight Board (9:30-10:30 pm) a. Revised Citizen Police Oversight Board 7. New Business 8. Adjourn Page 2 DRAFT City of Portland Charter Commission Meeting Minutes March 23, 2022 (Remote via Zoom) 1. Zoom Information The meeting was conducted as a remote meeting by Zoom videoconference in accordance with the Commission’s Remote Participation Policy and State law (1 M.R.S. §403-B). 2. Call to Order Chair Kebede called the meeting to order at 6:03 p.m. Commissioners present were Barowitz, Buxton, Chann, Eglinton, Houston, Kebede, Lizanecz (joined 6:10 p.m.), O’Brien, Sheikh-Yousef, Stewart-Bouley, Washburn, and Waxman. (Quorum established) 3. Review and Approval of Minutes On motion by Commissioner Waxman, seconded by Commissioner Eglinton, the Commission voted to approve the draft meeting minutes of March 16, 2022 by roll-call vote of 11-0. 4. Deliberation on Governance Models Commissioners deliberated on reforms to the basic structure of Portland’s government. Commissioner Chann made a motion to move the Chann/O’Brien Governance Compromise and the Amended Chann/O’Brien Governance Compromise up on the agenda to receive a first reading and clarifying questions so that these could be included in further deliberation on this topic. The Commission voted 10-2 (Washburn, Sheikh-Yousef opposed) to approve the motion. A discussion followed as to how to proceed: conduct a first reading and then postpone the discussion to next week, or first reading and then discuss governance components while the facilitators are present. {P2001564.1} 1 Page 3 DRAFT Commissioner Chann began presenting the Governance Compromise. It incorporates the mayor as chief executive officer as favored in the straw poll. The mayor also would chair the city council but would only vote in event of a tie; he likened this to the role of the Vice President with regard to the US Senate. The mayor would have a more significant role in development of the City budget, and would hire the “constitutional officers” subject to council confirmation. The city manager would be responsible for day-to-day administration. Commissioner O’Brien added that the mayor and at-large councilors would serve as the executive committee to would provide the channel for official communications, and that the mayor would be at the table for economic development discussions. Commissioner Eglinton questioned what the mayor’s “supervision” over the city manager entailed, and the response was oversight, not micromanagement. Commissioner Barowitz asked what oversight or checks and balances there would be over each branch, and the response was that each branch – legislative and executive – would serve as a check on the other. The proposal is silent on the ombudsman/public advocate concept for now. Commissioner Barowitz also asked about the use of “city manager” rather than “city administrator”; Commissioner O’Brien responded that whatever the title, the position is the City’s chief operating officer. Chair Kebede presented the Amended Chann/O’Brien Governance Compromise. The mayor no longer would be a council member or have a council vote, but would be the chief executive officer as in Westbrook, ME and in Burlington, VT. A professional administrator would be supervised by the mayor. The mayor would be to the City as the Governor is to the State of Maine. As to whether additional oversight is needed, the Chair noted that the executive and legislative branches in the cities cited oversee each other successfully. The mayor would be the City’s official representative with regard to other entities, including the Governor and Legislature. The commissioners agreed to act at the next meeting on issues not addressed by the proposals, to move expediently by consensus rather than by formal motion through a list of issues to be assembled by Commissioner Washburn. The Commission then would begin to promptly prepare and review the text for the Charter revision to effect the changes. 5. Public Hearing, Deliberations, and vote on Clean Elections proposal from Elections Committee Commissioner Buxton presented the Clean Elections proposal. The Commission’s legal advisor recommended an amendment to remove Section 13.a. to avoid constitutionality concerns. The Commission conducted a public hearing. Among the comments received was a rebuttal by John Brautigam, Esq. to the legal advice provided to the Commission. The Commission’s legal advisor said he would review the authorities cited by Atty. Brautigam, and the Commission proceeded subject to this issue’s later resolution. {P2001564.1} 2 Page 4 DRAFT Commissioner O’Brien moved to adopt the proposal, seconded by Commissioner Washburn. Following deliberation, the Commission considered several amendments offered by Commissioner O’Brien. 1) to strike or be silent on whether a candidate participating in clean election program must participate in a city-sponsored debate, seconded by Commissioner Eglinton; amendment failed on a tie vote of 5 yes (O’Brien, Eglinton, Chann, Washburn, Waxman), 5 no (Kebede, Huston, Sheikh-Yousef, Lizanecz, Buxton), 1 abstention (Barowitz) 2) to amend language regarding the database for contributions so that it would be determined by the city council; the amendment was seconded by Commissioner Washburn and then withdrawn. 3) to add a concept to section 13(a) to prevent for-profit and non-profit corporations from achieving financial gain through pending or future contracts and business when make contributions. Commissioner Washburn stated that the ethics code may be a better place for this prohibition. The amendment passed on a vote of 10 yes (O’Brien, Eglinton, Chann, Kebede, Huston, Sheikh-Yousef, Lizanecz, Buxton, Barowitz, Waxman), 1 no (Washburn) Following a general discussion the Commissioners voted 11-0 to approve the motion as amended (Commissioner Stewart-Bouley absent). 6. Public Hearing, Deliberations and vote on Redistricting proposal from Elections Committee Commissioner Chann presented the Elections Committee proposal to increase the number of district councilors from 5 to 10, with 3 at-large seats, for a total of 13 councilors. District lines would be drawn by the council and adjusted as now happens under a State law requiring a reapportionment ordinance after each decennial census. Commissioner Waxman recognized that smaller districts would make it easier to conduct participatory budgeting, but was not sure the voters would support 13 councilors and 10 districts. Commissioner Washburn favored an odd number of councilors, and expressed that increasing the number of councilors increases the connection between council members and those they represent. The Commission conducted a public hearing. In deliberation, Commissioner O’Brien explained that a larger council would have more mechanisms to allow more councilors to introduce legislation and would reduce the overburdening of councilors with committee assignments and work that now occurs. He added that tie votes can be addressed by allowing the mayor to vote, and that a 12-member council would allow an even number of councilors to be on the ballot each year. Commissioner Washburn suggested corresponding increases in the number of school board {P2001564.1} 3 Page 5 DRAFT members for the same reason. The Commission’s legal advisor noted that the number of districts is set by the existing Charter at five, and that the number of city councilors and of school board members is based on electing one from each of those districts. He explained that he had consulted with the school board’s legal counsel, who had spoken with the Superintendent about increasing the number of school board district seats in step with increases in city council district seats; while the school board had not considered the question, the Superintendent though it would agree to an increase for increased representation and parity. The Commission’s legal advisor also heard from the city clerk who thought it would be a “nightmare” to administer municipal elections with different school and council districts. Commissioner Waxman asked where the proposal came from, and several Commissioners responded that they saw there was a lot of interest among voters to broaden representation and diversity and to make the council more directly representative. Commissioner Barowitz said that he heard the same from voters, but was concerned it would create single-issue candidates. A friendly amendment to reduce the numbers to 6 district and 3 at-large councilors was declined. Commissioner Chann moved to adopt the proposal, seconded by Commissioners Washburn. Commissioner O’Brien moved to amend the motion to 12 councilors, with 9 district and 3-at large, with a chair who only votes to break a tie. Commissioner Chann seconded the amendment, which passed by a vote of 6 (O’Brien, Buxton, Lizanecz, Eglinton, Waxman, Chann) to 5 (Kebede, Barowitz, Houston, Washburn, Sheikh-Yousef). The Commission clarified that this vote is only about the city council, and approved the motion as amended by vote of 8 (O’Brien, Buxton, Lizanecz, Chann, Kebede, Barowitz, Houston, Washburn) to 3 (Waxman, Sheikh-Yousef, Eglinton). 7. Public Hearing, Deliberations, and vote on Code of Ethics proposal from Procedures Committee Because additions discussed at the last meeting did not make it into the version of the Code of Ethics proposal for this evening’s meeting, this item was tabled to the next meeting by consensus. 8. Public Hearing, Deliberations and vote on Participatory Budgeting Proposal from Procedures Committee Commissioner Waxman introduced this proposal, explaining that after reviewing several participatory budgeting programs, the Procedures Committee though it best to prepare a brief outline of the measure in the Charter and to leave development of the details of the actual participatory budgeting process to the city council. Through clarifying questions, Commissioners established that this proposal is limited to the City budget but Commissioner {P2001564.1} 4 Page 6 DRAFT O’Brien noted that nothing would stop the school board from similarly adopting participatory budgeting. On motion by Commissioner Waxman, seconded by Commissioner Washburn, the Commission approved the proposal by vote of 10-0 (Commissioners Stewart-Bouley and Lizanecz absent). 9. First Read of School Budget Process Proposal from Education Committee Commissioner Houston presented the first reading of this proposal. The purposes of the proposal are to make it easier for the public to understand and to participate in the school budget process, and to increase or achieve parity of the school board with the city council, which adopts its own budget. In this proposal, the city council is removed from the budget process except to send the school budget to a budget validation referendum; if at some time the voters decide to cease the budget validation referendum, then the City would instead hold a municipal school budget referendum. The proposal establishes an 8-member Joint Committee on Budget Guidance, with four councilors and four school board members appointed by the mayor and school board chair, respectively, to develop guidance for the City and school budget over the next two years prior to submission of a school budget. Asked by Commissioner Waxman how this proposal came to be, Commissioner Houston noted that he’s seen much budget back-and-forth recently, and that he also heard concerns from voters. Commissioner Eglinton added that the Joint Committee portion of the proposal came out of his experience on the school board and with the school district as well as his concern with parity. The Commission’s legal advisor pointed out that unlike the three-part school budget process under State law (school board proposes budget, legislative body votes on budget, voters vote at budget validation referendum), this proposal bypasses the legislative body entirely and goes directly to the budget validation referendum. This could lead to budget invalidation, and the issue would be locked into the Charter. Chair Kebede asked the Education Committee to work with legal counsel to see if the concerns could be addressed. 10. First Read of Capital Improvement Program Process Proposal from Education Committee Commissioner Eglinton presented the first reading of this proposal. Under the current Charter, the city manager’s duties include preparation of a rolling 5-year capital improvement program (CIP) plan that includes both short-term and longer-term projects and presentation of that CIP to the city council. This proposal expands that obligation by directing the city manager and the superintendent to jointly prepare that CIP and to present it to a joint meeting of the city council and school board to provide a comprehensive view of proposed public capital improvement projects in Portland. {P2001564.1} 5 Page 7 DRAFT 11. New Business Commissioner Barowitz suggested the creation of a constitutional officer position to serve as an auditor overseeing City finances to avoid fraud and waste. This person might be a new hire or might be additional responsibility for an existing City staff person, and that resulting savings and revenue otherwise achieved might pay for new measures under the Charter revisions. Chair Kebede reminded Commissioners that time is growing short to complete the Commission’s work and asked Committees to prepare narratives explain the purpose and process for each proposal. 12. Adjourn On motion by Commissioner Washburn, seconded by Commissioner O’Brien, the Commission voted to adjourn by roll-call vote of 9-0. The meeting adjourned at 11:00 p.m. {P2001564.1} 6 Page 8 Governance Committee Colleagues, I present the below proposal so that we can consider a system of government for Portland that more fully moves us away from our current undemocratic City Manager. It was developed based on the principles I told the voters I would represent, one-on-one feedback from fellow commissioners who also ran on these principles, testimony from our committee hearings (although we need to expand that input as described below), emails and comments many of us have received, my own research, and input from community members. The core components of the model I am proposing are: • Democracy first; • Strong checks and balances between both branches; • Efficient administration; • Public accessibility/accountability. What I outline is based on the Mayor-Council forms of government that almost all other states in America have in their largest cities (see attached document). Of particular note, I looked at the eight other northeast states, which all have elected mayors in their largest city (From Bridgeport to Manchester to Providence to Boston, etc.). I also looked closely at Wilmington, Delaware. Wilmington is perhaps the closest to Portland in terms of population vs ratio to the state (70,000 in Wilmington/1,000,000 in Delaware). It is also Delaware’s service center, economic engine, and one of its most diverse cities, much like Portland. That said, no individual model from another city will work perfectly for us. After reviewing and discussing the below proposal, I would suggest the committee invite a number of elected mayors from neighboring states to join us by zoom. We could then get their direct input on how their model works and what they would advise as we develop ours. As you will see, I have tried to address some of the committee concerns regarding the day-to- day operations and ensuring that our elected Mayor does not get bogged down in the minutia, while still ensuring public accountability that services are being implemented according to our values. Additionally, please note that my proposal contains an elected public advocate (PA). The public advocate position, as you’ll see, is a bit of a bridge, but also creates third party accountability. It will be able to fulfill some of the roles that were described in the committee’s version of a council chief of staff. The particulars are outlined below. Thanks, and I look forward to discussing this further. -Nasreen Page 9 Strong Council & Elected Mayor Powers of the Council City Council becomes the chief policy-making body of the city, including powers to enact all policy proposals, approve/reject all nominees for department heads and boards/commissions, approval of the city budget and all revenue changes (including ongoing scrutiny of expenditures/revenues), and emergency power approvals (further detail of these powers described in sections below). Councilors serve three-year terms, rotating, sworn in on the first Monday in January after the November election. No term limits. City Council elects 2-year Council President from its own ranks with majority vote (removal by 2/3rds). The Council President is the voice of the Council and meets with the Mayor regularly. President chairs Council meetings, sets Council rules/agenda, and creates/appoints/removes all standing committees/committee members/chairs. The President may create and appoint members to any ad-hoc committee to investigate a particular policy and/or investigate government malfeasance. Plus, any/all other duties bestowed upon the office by a majority vote of the Council. Council Presidents may not serve more than 4 consecutive terms. The City Council will have its own independent staff to meet its responsibilities, policy development, public communications, and administrative tasks. Council’s budget will be determined within the annual city budget proposed by the Mayor and reviewed in accordance with the budget process. Powers of the Mayor Elected Mayor ensures the implementation of policy and oversees the efficient administration of the city. No longer a member of the Council and does not have a vote. Does have the ability to propose policy for Council review and must sign/veto all legislation enacted by the Council (described below). The Mayor will nominate for Council review and approval a “City Administrator” who will be responsible for the day-to-day supervision of all Department Heads, also nominated by the Mayor, and city operations. The “City Administrator” will serve under the direction of the Mayor, however, will be required to attend any Council Committee meeting when a committee chair requests it. Mayor is elected on the same cycle as the US President (effective 2024) and sworn in on the first Monday in January after the November election. May serve only two consecutive 4-year terms. Nomination and Oversight of Department Heads The Council reviews/approves/rejects all Mayoral nominees of Department Heads to lead city staff (Chief of Police, Director of Public Works, Director of HHS, etc.). Council approves/rejects each nominee with majority vote after the council committee of jurisdiction holds public hearings/vote on each nominee (for instance: Public Safety Committee reviews nominee for Chief of Police). Staff below department heads are hired by their respective supervisors and do not need Council approval. Page 10 All Department Heads, after review/approval by Council, will report to and serve at the will of the Mayor after approval by Council, with day-to-day oversight administered by the City Administrator. All Department Heads, or designee, are required to provide all requested information to council committees of jurisdiction and testify to committees when called upon. All Department Heads may request to attend a Committee meeting to report on any matter pertaining to the committee’s jurisdiction. Policy Development All policy proposals must go through Council for public review/amendment/final disposition. All Councilors and the Mayor will have the right to submit policy proposals for Council consideration/review/action. All Department Heads, or their designee, will be available to elected officials for the purpose of any proposed policy development. (If a staff member or constituent wants to propose an idea for Council consideration, they can ask an elected official to sponsor the proposal). All policies, ordinances, orders, expenditures, revenue changes, etc. approved by Council must then be signed into law by the Mayor or vetoed within 10 days of passage. Council may override all vetoes within 15 days, with 75%+ super-majority. If Council overrides, policy is enacted. If council fails to override, policy is not enacted. If Council fails to override, Council may amend to generate 75% support of Council or to gain Mayor’s signature. Council actions that solely impact the operations of the Council (rules, procedures, committee structures, vacancies, etc.) or that are non-binding statements do not need to be signed by the Mayor nor can they be vetoed. Development, Passage and Implementation of Budgets Mayor develops/proposes City budget, excluding education expenditures, for Council consideration. Council amends/approves after public hearings. Same veto standard. The Mayor oversees implementation of the City budget through Department Heads. Council monitors implementation of the budget through committees of jurisdiction. May request that any Department Head under their jurisdiction attend their committee meeting to present budget progress and answer any questions. Mayor develops/proposes schoolwide education budget, in consultation with School Board Chair and Superintendent, for School Board consideration. School Board amends/approves after public hearings and sends to voters for approval. The city council no longer votes on the school budget. Page 11 Compensation Council salaries increased to $17K a year (from $6K), with annual COLA based on CPI (likely proposal from Procedures Committee member). Current benefits (HC/Pension, etc.) not changed. Commensurate for School Board members. Mayor salary increased to twice the average income for a family of four in Portland as defined by the annual census (up from 1.5x to recognize the increased responsibilities). Adjusted at the start of each new term. Succession Plan In the event of a vacancy or incapacity of the Mayor, the “Elected Public Advocate” (described below) is first in line to replace the Mayor. Council President is second. In the event of a Council or School Board vacancy, the Mayor nominates three people for consideration. Council or School Board may only seat from the list of nominations. Should they reject all three, the Mayor must nominate three others. Once seated, the nominee remains in place until the next general election. The seated individual may run for the seat. Elected Public Advocate The Elected Public Advocate serves as an independent ombudsperson for city government whose mission is to improve the transparency, responsiveness, and accountability of City government. An additional set of eyes and ears on the council and mayor branches. Public Advocate is elected on the same cycle as the US President (effective 2024). May serve only two consecutive 4-year terms. Duties of the Public Advocate Public Advocate is charged with meeting constituent needs (direct or referred by any other elected official), providing outside review of city agencies, responding to FOIA requests, investigating citizens' complaints about city services, and making proposals to address perceived structural shortcomings or failures for Mayor or Council consideration. Public Advocate has authority to propose structural changes to city government and/or greater oversight controls for Council deliberation and consideration. In the event of a vacancy or incapacity of the mayor, the Public Advocate is first in line to become Mayor until the end of the elected term. Nomination of the City Clerk The City Clerk, overseeing elections and Clerk functions, becomes an independent office of the executive and legislative branches by being nominated by the Public Advocate at the beginning of their term. City Clerk is approved/rejected by the Council. Once approved, the City Clerk reports to the Public Advocate and may not be removed without recommendation by the Public Advocate and 66% approval by the Council. The City Clerk is not term-limited and may cross over administrations. Page 12 Nomination of the City Attorney The City Attorney, providing legal advice to the Council/Mayor and constituents, becomes an independent office of the executive and legislative branches by being nominated by the Public Advocate and approved/rejected by the Council. Once approved, the City Attorney reports to the Public Advocate and may not be removed without recommendation by the Public Advocate and 66% approval by the Council. The City Attorney is not term-limited and may cross over administrations. Development, Passage and Implementation of Budget The Public Advocate’s office will be funded with no less than .05% (half a percent) of total revenue to the city in order to keep it independent of Mayor/Council determinations (current City Clerk/Attorney budgets total $1.5M). If they need additional funds, they may request such from Council for approval through the normal budget process. Appointments to City Committees and Boards The Council reviews all nominations to board and commissions for final approval/rejection, which are now made by the Public Advocate through an open and transparent application process. Council approves/rejects each nominee with majority vote after the council committee of jurisdiction holds public hearings/vote on each nominee. Public Advocate’s Salary: Public Advocate will be paid 1.5x the average salary for a family of four in Portland as determined by the annual census. Succession Plan In the event of a vacancy or incapacity of the Public Advocate, the Council will appoint a Council member to fill the role, and a special election will be held to fill the term of the Public Advocate vacancy at the next general election. Cost Analysis This proposal is projected to be revenue neutral. Implementing this Strong Council and Elected Mayor will save approximately $200,000. With the elimination of the City Manager, the City will save about $250,000 in salary and benefit costs. $50K of that would be used for the enhancement of the Mayor’s salary/benefits. The salary for the proposed City Administrator salary can be pulled from the current Chief of Staff position in the City Manager’s office. The Public Advocate’s salary will be covered by shifting the current Deputy City Manager salary (will save about $50K) and the Clerk and Attorney budgets will stay the same. The department Page 13 will then have around $250,000 for community liaisons, administrative work, and investigation costs. The cost for the increase to Councilor’s salaries is being explored by the “Procedures committee” and will be priced out in that committee. This proposal should take into account that a future Council may want to provide an additional stipend for the Council President. All that said, obviously if this passes, the annual city budgeting process will determine whether any particular provision should receive more or fewer resources. Forms of government for the largest city of every state State Largest City Population Chief Executive Vermont Burlington 42,899 Mayor West Virginia Charleston 47,215 Mayor Wyoming Cheyenne 63,957 Mayor Maine Portland 66,417 Manager Delaware Wilmington 70,635 Mayor New Hampshire Manchester 112,525 Mayor Montana Billings 116,827 Mayor North Dakota Fargo 124,844 Mayor South Carolina Charleston 136,208 Mayor Connecticut Bridgeport 144,900 Mayor Mississippi Jackson 164,422 Mayor Rhode Island Providence 179,335 Mayor South Dakota Sioux Falls 181,883 Mayor Arkansas Little Rock 197,881 Mayor Utah Salt Lake City 200,591 Mayor Alabama Birmingham 208,928 Mayor Iowa Des Moines 216,853 Manager Page 14 Idaho Boise 228,790 Mayor New Jersey Newark 282,090 Mayor Alaska Anchorage 291,538 Mayor Hawaii Honolulu 347,397 Mayor Kansas Wichita 389,225 Manager Louisiana New Orleans 399,187 Mayor Minnesota Minneapolis 427,728 Mayor Virginia Virginia Beach 450,189 Manager Nebraska Omaha 468,262 Mayor Georgia Atlanta 504,527 Mayor Missouri Kansas City 507,928 Mayor New Mexico Albuquerque 560,218 Mayor Wisconsin Milwaukee 592,025 Mayor Maryland Baltimore 599,827 Mayor Kentucky Louisville 620,578 Mayor Nevada Las Vegas 647,829 Manager Oklahoma Oklahoma City 649,021 Manager Oregon Portland 661,189 Commission Michigan Detroit 672,662 Mayor Tennessee Nashville 681,928 Mayor Massachusetts Boston 699,927 Mayor District of Columbia Washington, D.C. 702,455 Mayor Colorado Denver 716,492 Mayor Washington Seattle 749,627 Mayor Indiana Indianapolis 867,125 Mayor Page 15 North Carolina Charlotte 881,819 Manager Ohio Columbus 895,477 Mayor Florida Jacksonville 903,889 Mayor Pennsylvania Philadelphia 1,587,828 Mayor Arizona Phoenix 1,660,272 Manager Texas Houston 2,325,502 Mayor Illinois Chicago 2,705,994 Mayor California Los Angeles 3,994,928 Mayor New York New York City 8,879,928 Mayor Total Population 39,829,721 Pop. Mayor Cities 34,206,907 % in Mayor Cities 86% Almost 90% of Americans, in comparable cities to Portland, operate with a directly elected mayor. Page 16  Portland's Current Distribution of Powers & Authority Compared to Proposals for Change Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal 1) Who is the Chief Executive Officer? City Manager City Manager Mayor City Council; Mayor has special right to City Council; Mayor can propose policy 2) Who has policy making authority? City Council form staffed public task force on policy to Council, which would be required to not taken up by Council Committee. consider and vote on it. 3) Who oversees policy City Manager City Manager Mayor implementation? City Administator, City Clerk, 4) Who are the top city officials?(note City Manager, City Clerk, Corporation City Manager, City Clerk, Corporation Corporation Counsel, Public Advocate 1) Counsel Counsel, Chief of Staff (note 2) (note 3) Mayor chairs committee with at least 2 Public Advocate is elected. Clerk and other Council members to nominate 5) What is the process for filling top Same as current for City Manager, Clerk, Counsel nominated by Public Advocate. City Manager, Clerk, and Corporate city official positions Counsel, and Chief of Staff Administrator nominated by Mayor. Counsel. Council confirms by majority Council confirms all by majority vote. vote. Public Advocate may recommend removal of City Clerk or Corporate Mayor-chaired 3 person Council 6) What is the process for removing top Counsel; Council must approve with Committee may recommend removal; No change city officials 2/3rds vote. City Administrator serves Council approves by majority vote. at will of the Mayor. Public Advocate may be removed by citizen's recall. 7) Who manages day to day operations City Administrator under direct City Manager City Manager of city affairs? supervision of Mayor City Manager nominates, Council Mayor nominates, Council approves; 8) How are Department Heads approves. Heads serve at will of the City no change department heads serve at will of the hired/supervised/ removed? Manager. Mayor. Page 17 Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal Mayor is not a member. Council elects 9) Is mayor a member of Council? If yes, Mayor is voting member and chairs the no change its own President from amongst its does mayor have a vote? Council. members. 10) Who Creates and Appoints Mayor, but council may override with President of Council can create no change members to Council Committees? 2/3 vote. committees and appoint members. 11) Who appoints members of city PA nominates; Council approves/ Council no change boards and commissions? rejects by majority vote. 12) Who has authority for preparing/ City Manager prepares with "guidance" Mayor prepares with assistance from Mayor prepares with assistance of approving Municipal Budget from Mayor; Council approves. Manager; Council approves. Administrator; Council approves. Mayor prepares with School Board School Board/Superintendent with 13) Who has authority for preparing/ Chair and Superintendent; School guidance from Council; approval by no change approving School Budget? Board approves and sends to voters; no Council and then by voters. Council vote. Yes Override 14) Can Mayor veto the municipal Yes; 75% majority needed to override requires 6 (of 8) votes. Mayor does not No budget approved by the Council? veto. vote. Yes -- full veto power over all policies, 15) Can Mayor veto other Council No No ordinances, orders, expenditures, etc.; decisions? Council requires 75% vote to override. 16) How long does the Mayor serve in 4 years, corresponding with 4 years 4 years office? Presidential election years 17) Are their mayoral term limits? 3 terms 3 terms 2 terms 18) Can Mayor be removed before term Via citizens' recall Via citizens' recall Via citizens' recall is over? Page 18 Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal Charter Arbitration Panel (note 4) and required City Council hearing for Referendum Advocates (note 5). 19) Have new powers/authority been Not applicable Council required to develop procedures None proposed for non-city officials through which citizens may formally propose policies for council consideration (note 6). Notes: 1) For purposes of this chart, current top city officials (other than mayor) include the city manager/administrator, city clerk, and corporate counsel as these are often in a town's Charter. New top positions proposed include a Chief of Staff and a Public Advocate. 2) Duties of proposed Chief of Staff: coordinate Council staffing need; receive and track constituent services and FOIA requests; post notices of city meetings and post all materials. 3) Duties of proposed Public Advocate: serve as independent ombudsman to improve city government. Provide outside review of city agencies, investigate citizen complaints, and make proposals for improvement to Mayor and Council. Respond to FOIA requests. Serves as Mayor in case of vacancy or incapacity of elected Mayor. 4) Arbitration panel will convene when called to act by City Council to interpret Charter language and provide a formal decision. Panel to consist of 3 members from previous Charter Commission. 5) When a referendum campaign has collected 2/3 of the required signatures, City Council will be required to hold a public hearing. Page 19 Structural Examination of Systems of City Government A Visual Representation of the Elements of City Government Submitted by Zack Barowitz, D3 Page 20  One Branch Defining Characteristics 1) Council has all executive, legislative, and oversight powers. 2) Mayor is head of Council, sets meeting agendas, and typically has some other legislative powers no other council member has. 3) All (most) executive powers delegated by Council to an appointed City Manager Often Cited Advantages of this form a) Executive decisions are made by a professionally trained expert in city management b) CEO is not influenced by political considerations relating to his/her own electoral interests c) CEO devotes more time to administrative functions including policy implementation than to policy development d) No interbranch divisiveness and maximal congruence between policy development and policy implementation Often Cited Disadvantages of this form a) CEO is not accountable to the voters, a fundamental disconnect with the principle that government decision-makers should be accountable to the people they serve. b) No direct incentive for CEO to be responsive to individual citizen or interest group concerns c) Little to no incentive for meaningful oversight of government agencies, programs, and policies or individual behavior of corporate officers Page 21  One Branch + Elected Oversight Defining Characteristics 1) Single branch for legislative & administrative 2) Oversight branch has investigatory and advisory powers but not adjudicative ones Often-cited Advantages of this form a) Branch dedicated to government oversight will lead to more comprehensive investigation and reporting of how city government is functioning b) Independence of oversight branch reduces influence of other government officials in determination of what is investigated/researched, what recommendations are made, and what final reports actually say c) Independent branch dedicated to reviewing operations of city government is best place to house “ombudsman” providing non-judicial recourse for citizens dissatisfied with executive and/or legislative branch decisions Often-cited Disadvantages a) Single branch gives less authority to elected officials Page 22  Two Branches Defining Characteristics 1) Separate branches for executive and legislative functions 2) Mayor not a member of the Council Often Cited Advantages of this form a) Leaders responsible for executive and legislative functions are directly accountable to voters b) Leaders of both branches have electoral incentives to be responsive to individual citizens and interest groups c) Checks and balances between both branches, including legislative branch oversight of city agencies, are typically built-in Often Cited Disadvantages a) CEO (Mayor) typically has little to no city management experience b) Potential politicization of city services c) Interbranch divisiveness has tendency to develop Page 23  Three Branches Defining Characteristics 3) Separate branches for executive, legislative, and government oversight functions, each with elected leaders 4) Oversight branch has investigatory and advisory powers but not adjudicative ones 5) Public Advocate position tends to be breeding ground for individuals with ambitions for higher office Often-cited Advantages of this form d) Branch dedicated to government oversight will lead to more comprehensive investigation and reporting of how city government is functioning e) Independence of oversight branch reduces influence of other government officials in determination of what is investigated/researched, what recommendations are made, and what final reports actually say f) Independent branch dedicated to reviewing operations of city government is best place to house “ombudsman” providing non-judicial recourse for citizens dissatisfied with executive and/or legislative branch decisions Often-cited Disadvantages b) Additional branch increases likelihood of interbranch divisiveness Page 24  Evaluation of the systems based on goals, values, and anticipated outcomes. Because values are more easily agreed upon than methods, I think a consideration of goals is a good place to start. My current thinking on structure of government is to test various models against various values, goals, and expected outcomes.These could include: ● Responsiveness of government to constituent needs–and to change, innovation, and unexpected events ● Efficient administration ● Provide avenues for public recourse ● Transparent oversight/daylight to minimize waste, fraud, and abuse ● Empower the legislative/elected body ● Mitigate red tape ● Increase public participation NB: This is presented for the sake of illustration not necessarily as a methodological framework. Example: Current System Enhanced One Branch (One One w/elected Two Branches: Thee Elected Branches: Branch) Branch oversight Council-Mayor Council-Mayor-Oversight Efficient Admin Empowered Elected Officials Public/Transparent Oversight Avenues for Public Recourse Cost Page 25 Proposed Process for Commission Decision Making 1) Using the above charts, commissioners discuss how many branches Portland’s government should have 2) At the end of discussion, a straw-vote is taken on the above question. 3) After straw vote is taken, the Powers/Authority Matrix is used to flesh out the specific powers of the officers in whichever government form has won the most votes. A “Commission Proposal” Column has been added to the previous Matrix to facilitate this “fleshing out”. All of the cells in that column are currently blank. Some will be filled in as a result of the above straw-vote (i.e., who is the CEO? And who manages day-to-day operations of city staff?). The Commissioners will then proceed (row by row) to decide how to complete each unfilled cell in the Commission Proposal Column, picking from what’s been proposed in the other columns for each row or coming up with some other option entirely. After discussing all the options for each row, further straw-votes would be taken on what goes into each blank cell. 4) After all cells are completed on a straw-vote basis, the Commissioners would then take a final vote on what is contained in the Commission Proposal column as a whole. Presumably some commissioners may disagree with how some of the cells have been completed, but they may still decide to vote in favor of the Commission Proposal as a whole. Note: To speed up the process described in (3) above, one idea is to give each commissioner their own matrix and have them complete each blank cell themselves. Then all the individual responses could be tabulated (anonymously) to see how much agreement or disagreement there is in terms of each cell. Cells where there is substantial disagreement would (presumably) be the place where discussion and debate would begin. [NB: This process in particular, and much of the work on this document generally, was developed by Valerie Kelly and Phil Steele, who worked in close collaboration with Cmsr. Barowitz.] Page 26  GOVERNANCE COMPROMISE Co-Sponsors: Commissioners CHANN and O’BRIEN MAYOR AS CHIEF EXECUTIVE ● The Mayor shall be the chief executive officer of the City of Portland with supervision of the City Manager and the implementation of policies passed by the City Council. ● The Mayor shall preside as chair of the City Council. ● The Mayor shall cast a vote only in the event of a tie. ● The Mayor and At-Large Councilors shall together form an Executive Committee, who will appoint Council members to committees. ● The Executive Committee will develop and propose Council rules of procedure for adoption by the City Council. ● The Executive Committee will serve as the official channel for the Mayor and Council to communicate with Constitutional Officers about policies, priorities, and to set agendas for Council meetings. PUBLIC FIGUREHEAD ● Mayor shall serve as the official representative of the City in Augusta and Washington, D.C. ● Mayor shall serve as the official spokesperson for the City. ● May form public task force by right with reasonable staffing support for any issue not taken up by Council. BUDGETARY POWERS ● The Mayor shall present the City Budget to the Council for adoption. ● The Mayor shall communicate their and City Council’s priorities for the drafting of the City Budget by the City Manager, who will work with Department Heads to develop their departmental budgets. ● The Mayor may veto the City Budget and the Council can override with a 2/3 majority vote. HIRING & FIRING OF CITY STAFF ● The City Manager, Corporation Counsel, and City Clerk shall be hired following a search process that includes the Mayor and City Council and a majority vote of the City Council. ● The Mayor shall chair the City Manager, Corporation Counsel, and City Clerk’s annual performance review and may call, at any time, an executive session of the Council to discuss performance. These officers may be removed following a majority vote of the City Council. ● The Mayor shall not have the power to unilaterally hire and fire city staff, including the City Manager, City Attorney, City Clerk, Department Heads. ● The Mayor advises and consents to City Manager’s nominations of Department Heads and presents to City Council for confirmation. POLICY IMPLEMENTATION, ECONOMIC DEV & DAY-TO-DAY OPERATIONS ● The Mayor shall ensure that policies passed by the Council are implemented by the City Manager and city staff and shall meet regularly with the Executive Committee and the City Manager to develop a plan for implementation to help ensure and measure accountability. ● The Mayor shall lead an economic development task force. Page 27  GOVERNANCE COMPROMISE (AMENDMENT) Co-Sponsors: Commissioners CHANN and O’BRIEN amended by BUXTON, KEBEDE, SHEIKH- YOUSEF, and WASHBURN MAYOR AS CHIEF EXECUTIVE  The mayor shall be the chief executive officer of the City of Portland, overseeing and supervising the city administrator and implementing policies passed by the City Council.  The mayor is no longer a member of the Council and does not have a council vote. COUNCIL AS LEGISLATIVE BRANCH  Councilors shall together form an Executive Committee, which appoints members to committees and elects a 2-year council president.  The council president develops and proposes council rules of procedure for adoption by the council.  The council president serves as the official channel for Council to communicate with constitutional officers about policies, priorities, and agendas for Council meetings.  The mayor may propose legislation to be taken up by council. Individual council members may sponsor legislation. All city staff and members of the public may petition a councilor to sponsor legislation to be taken up on their behalf. PUBLIC FIGUREHEAD  The mayor shall serve as the official representative of the city in Augusta and Washington, D.C.  The mayor shall serve as the official spokesperson for the city.  The mayor may form public task forces with staffing support for any issue not taken up by the council. BUDGETARY POWERS  The mayor, with the assistance of department heads and the city administrator, drafts and presents the annual city budget to the council for adoption.  The mayor, with the assistance of the city administrator, works with department heads to develop their departmental budgets. REMOVAL OF MAYOR  If the mayor is convicted of a felony materially related to their official duties, the City Council may, upon a vote of ¾ of its members, remove the mayor from their office.  If the mayor engages in official misconduct or neglect of duty, the council may schedule a recall election by a 3/4ths vote. (from Westbrook) APPOINTMENTS AND STAFFING  The mayor may not unilaterally hire and fire city staff, including the city administrator, city attorney, city clerk, and department heads.  The mayor nominates department heads and the city administrator, and presents nominations to the City Council for confirmation. Page 28   Only department heads may fire and hire city staff.  The council cannot unilaterally fire or hire officers, including the city administrator or department heads. The mayor shall recommend removal of an officer, and the council can approve with simple majority. If council seeks to discharge an officer, they should seek approval of the mayor, who will make the recommendation for removal to be approved by a majority of the council. Should the council seek to remove an officer without mayoral approval, they may only do so with a ¾ majority vote. POLICY IMPLEMENTATION, ECONOMIC DEVELOPMENT, AND DAY-TO-DAY OPERATIONS  The mayor oversees the implementation of policies passed by the council and shall meet regularly with the Council Executive Committee to develop implementation plans and report on results and measure accountability.  The mayor shall direct the city administrator and department heads to implement council policies.  The mayor shall lead an economic development task force.  The mayor shall chair the city administrator’s annual performance review and may call, at any time, an executive session of the council to discuss performance. Page 29  [CHANGES TRACKED] GOVERNANCE COMPROMISE Co-Sponsors: Commissioners CHANN and O’BRIEN amended by KEBEDE, BUXTON, SHEIKH- YUSUF, and WASHBURN MAYOR AS CHIEF EXECUTIVE ● The mayor shall be the chief executive officer of the City of Portland, overseeing and supervising the City Manager city administrator and implementing policies passed by the City Council. ● The mayor is no longer a member of the Council and does not have a vote. ● The mayor signs or vetos all legislation enacted by the Council. Commented [1]: Veto power was not in ● The mayor shall preside as chair of a twelve (12) member council. original document Michael sent. I think the veto powers significantly alters the powers of ● The mayor shall cast a vote only in the event of a tie. the mayor and makes this **much** less of a ● The mayor and At-Large Councilors shall together form an Executive Committee, who will compromise proposal than Michael's original appoint Council members to committees. text. I'm still not sure where I land on veto power, but I think if the goal is still to ● The Executive Committee will develop and propose Council rules of procedure for adoption by encourage some council-mayor the City Council. collaboration, it might be better to allow Mayor to sponsor legislation (and spell this ● The Executive Committee will serve as the official channel for the mayor and Council to out in detail in this proposal) and form communicate with Constitutional Officers about policies, priorities, and to set agendas for legislative tasks force, rather than give mayor Council meetings. veto power. If the mayor doesn't have veto power and instead needs to collaborate w/ COUNCIL AS LEGISLATIVE BRANCH councilors to push their agenda, is that more collaborative? I don't think their lack of a veto ● Councilors shall together form an Executive Committee, which appoints members to committees makes them any less "accountable" to voters, and elects a 2-year council president. we've just seen veto power abused pretty ● The council president develops and proposes council rules of procedure for adoption by the extensively in Maine, especially with such a council. split electorate. ● The council president serves as the official channel for Council to communicate with Either way-- I think veto power is up for constitutional officers about policies, priorities, and agendas for Council meetings. debate and I think we should hash it out as commission. I don't know if i can sign on to ● CB added: The mayor may propose legislation to be taken up by council. Individual council something with veto power for the mayor. members may sponsor legislation. All city staff and members of the public may petition a Commented [2]: Is this a Committee of the councilor to sponsor legislation to be taken up on their behalf. Whole or do councilors elect a few of their members as executives? Commented [3R3]: Similar question: I think the PUBLIC FIGUREHEAD WHOLE council should elect the whole of their executive committee-- so they all vote ● The mayor shall serve as the official representative of the city in Augusta and Washington, D.C. on their president and 2(?) other committee ● The mayor shall serve as the official spokesperson for the city. members to serve on Exec. ● The mayor may form public task forces by right with staffing support for any issue not taken up broader q is do they need an exec committee by the council. or is it better just to have 1 CP? BUDGETARY POWERS Commented [4]: this was a common thread b/tw Gov Committee and NSY proposal. ● The mayor, with the assistance of department heads and the city administrator, drafts and presents the annual city budget to the council for adoption. Page 30  ● The mayor, with the assistance of the shall direct the drafting of the City Budget by the City Manager, who will work withand city administrator, shall works with department heads to develop their departmental budgets. REMOVAL OF MAYOR ● If the mayor is convicted of a felony materially related to their the performance of the Mayor’s official duties, the City Council may, upon a vote of ¾ of its members, remove the mayor from their office. ● If the mayor engages in official misconduct or neglect of duty, the council may schedule a recall election by a 3/4ths vote. (from Westbrook) APPOINTMENTS AND STAFFING ● The mayor may not unilaterally hire and fire city staff, including the City Managercity administrator, city attorney, city clerk, and department heads. ● The mayor advises and consents to City Manager’s shall nominatesions department heads and the city administrator, and presents nominations to the City Council for confirmation. ● Only department heads may fire and hire city staff. ● The city council may not unilaterally discharge department heads or the city administrator. These Commented [5]: I'm not sure I'm 100% behind individuals Department heads/City Administrator may only be fired if the Mayor recommends this addition, I think it makes sense for the council to not be able to fire a mayor's staff such action and a majority of the council approves. The council cannot unilaterally fire or hire out from under them, but at the same officers, including city administrator or department heads. The mayor shall recommend to remove time...what if a mayor hires someone who an officer, council can approve with simple majority. If council seeks to discharge an officer, they turns out to be a real dumpster fire of a person, but they won't fire them because should seek approval of mayor, who will make the recommendation for removal to be approved they're a personal friend, you'd want a check by majority of council. Should the council seek to remove an officer without mayoral approval, on that thru the council, right?) they may only do so with a ¾ majority vote. Does it make more sense that the mayor can ● nom, hire, fire w/ a vote of 2/3rds of council, and council likewise can by 2/3 or even POLICY IMPLEMENTATION, ECONOMIC DEVELOPMENT, AND DAY-TO-DAY larger majority opt to remove a high level OPERATIONS staffer? It offers a balance on power and ● The mayor oversees the implementation of policies passed by the council and shall meet regularly addresses sone folks concerns about with the Council Executive Committee to develop a plan for implementation plans and report on cronyism better. results. to help ensure and measure accountability. Commented [6]: This section feels a little convoluted. Does it make sense to say more ● The mayor shall direct the city administrator and department heads City Manager to implement simply: council policies. "Mayor may hire and fire department heads and the city administrator with nomination ● The mayor shall lead an economic development task force. and approval for any new hires or discharges ● The mayor shall chair the City Managercity administrator’s annual performance review and may with a 2/3 council vote? Department heads call, at any time, an executive session of the council to discuss performance. are responsible for hiring and firing of their own staffers." Page 31 TWO PLANS FOR An Overlap Analysis PORTLAND Page 32 KEY TO THE PLANS Blue Plan: Chann-O’Brien Agreeme Purple Plan: Chann-O’Brien as nt amended by Buxton, Kebede, Sheikh-Yousef and Washburn Agreement in principle; Details need to be Please note that colors are intended merely as reconciled handy ways to distinguish the plans and do not denote anyone’s politics or opinions. They were chosen because they are the colors of Portland’s two public high schools. We need to talk Page 33 MAYOR AS CHIEF EXECUTIVE The mayor shall be the chief The mayor shall be the chief executive officer of the City of executive officer of the City of Portland, overseeing and Portland, overseeing and supervising the city administrator supervising the city administrator and implementing policies passed by and implementing policies passed by the City Council. the City Council. Page 34 COUNCIL AS LEGISLATIVE BRANCH The Mayor shall preside as chair of the City Councilors shall appoint members to Council. committees and elect a 2-year council The Mayor shall cast a vote only in the event of president. a tie. The council president develops and The Mayor and At-Large Councilors shall proposes council rules of procedure for together form an Executive Committee, who will adoption by the council. appoint Council members to committees. The council president serves as the The Executive Committee will develop and official channel for Council to propose Council rules of procedure for communicate with constitutional officers adoption by the City Council. about policies, priorities, and agendas for Council meetings. The Executive Committee will serve as the official channel for the Mayor and Council to The mayor may propose legislation to be communicate with Constitutional Officers about taken up by council. Individual council policies, priorities, and to set agendas for Council meetings. members may sponsor legislation. All city staff and members of the public may petition a councilor to sponsor legislation to be taken up on their behalf. Page 35 PUBLIC FIGUREHEAD Mayor shall serve as the official Mayor shall serve as the official representative of the City in Augusta representative of the City in Augusta and Washington, D.C. and Washington, D.C. Mayor shall serve as the official Mayor shall serve as the official spokesperson for the City. spokesperson for the City. May form public task force by right May form public task force by right with reasonable staffing support for with reasonable staffing support for any issue not taken up by Council. any issue not taken up by Council. Page 36 BUDGETARY POWERS The Mayor shall present the City The mayor, with the assistance of Budget to the Council for adoption. department heads and the city administrator, drafts and presents The Mayor shall communicate their the annual city budget to the council and City Council’s priorities for the for adoption. drafting of the City Budget by the City Manager, who will work with The mayor, with the assistance of Department Heads to develop their the city administrator, works with departmental budgets. department heads to develop their departmental budgets. The Mayor may veto the City Budget and the Council can override with a 2/3 majority vote. Page 37 HIRING AND FIRING OF CITY STAFF The City Manager, Corporation Counsel, and The mayor may not unilaterally hire and fire city City Clerk shall be hired following a search staff, including the city administrator, city process that includes the Mayor and City attorney, city clerk, and department heads. Council and a majority vote of the City Council. The mayor nominates department heads and The Mayor shall chair the City Manager, the city administrator, and presents Corporation Counsel, and City Clerk’s annual nominations to the City Council for performance review and may call, at any time, confirmation. an executive session of the Council to discuss performance. These officers may be removed Only department heads may fire and hire city following a majority vote of the City Council. staff. The Mayor shall not have the power to The council cannot unilaterally fire or hire unilaterally hire and fire city staff, including the officers, including the city administrator or City Manager, City Attorney, City Clerk, department heads. The mayor shall Department Heads. recommend removal of an officer, and the council can approve with simple majority. If The Mayor advises and consents to City council seeks to discharge an officer, they Manager’s nominations of Department Heads should seek approval of the mayor, who will and presents to City Council for confirmation. make the recommendation for removal to be approved by a majority of the council. Should the council seek to remove an officer without mayoral approval, they may only do so with a ¾ majority vote. Page 38 POLICY IMPLEMENTATION, ECONOMIC DEVELOPMENT, DAY-TO-DAY OPERATIONS The Mayor shall ensure that policies The mayor oversees the passed by the Council are implementation of policies passed by implemented by the City Manager the council and shall meet regularly and city staff and shall meet with the Council Executive regularly with the Executive Committee to develop Committee and the City Manager to implementation plans and report on develop a plan for implementation to results and measure accountability. help ensure and measure accountability. The mayor shall direct the city administrator and department heads The Mayor shall lead an economic to implement council policies. development task force. The mayor shall lead an economic development task force. Page 39  Ethics Standards and Commission Introduction: Ethics boards, ordinances and charter amendments can be found in municipalities across the State of Maine and across the country. They provide guidelines for city officials to execute their duties in an ethical and forthright manner. This Amendment brings Portland up to speed with other municipalities across the state that have similar provisions. What does this Amendment do? ● Requires the Portland City Council to Form an Ethics Commission (EC) ● Requires the City Council to adopt of Code of Ethical Conduct recommended by the EC ● Instills discretionary power of the EC to render advisory opinions on a number of matters of City business. ● Requires the EC to provide training to City officials on standards of conduct. ● Allows the EC to hire an Accountability Officer to provide education and guidance and to serve as an independent ombudsperson in resolution of disputes in an advisory capacity. Why is this Amendment needed? Currently, Portland does not have an ethics board, a written code of ethics, nor requirements of written disclosures of conflicts. While the existence of such instruments may not in and of themselves prevent a bad actor from seeking pecuniary gain or to otherwise use or abuse their power or position; it does provide standards and a process for which such matters may be addressed. Additionally, while incidences of waste, fraud, abuse, and corruption are relatively rare in most municipal governments; the most common breaches of ethical standards include improper sharing of information, improper gifts, and indecent treatment of colleagues. (Siewert & Udani). The current City of Portland ordinance does not apply to elected officials and is non-specific in terms of standards of conduct, deferring mainly to State statute on matters of personal gain: “In addition to adhering to general standards of conduct for employees of any organization, public employees are expected to treat everyone they serve with complete impartiality and are prohibited from using their official position for personal profit or the profit of friends and family. Employees must comply with the conflict of interest standards of State law 30-A M.R.S.A. Sec. 2605.” This Amendment is not intended to imply that City officials currently act unethically. Rather, it is a provision that ensures our city maintains a code of ethical conduct for officials that will build public trust and ensure Portland has high ethical standards. This Amendment is a product of public comment, campaign discussions and research by Commission members. Page 40 Other Purposes: ● Encourage proper use of office ● Compliance with advisory opinions ● Mitigate instances of personal gain, political favors, political solicitation, and favoritism. ● Protect against the “revolving door” of City officials, consultants, and contractors. General Reasoning for an Ethics Commission: ● Protect whistleblowers. ● Fight and discourage corruption, waste, fraud, abuse, and favoritism from both elected and unelected individuals. ● Increase transparency and accountability in municipal government. ● Be a safe, independent place to send complaints and concerns regarding ethical conduct. ● Creates an ethics mission and code for the City of Portland. ● Cost effective, productive ethical conduct oversight that has proven to work elsewhere in Maine. ● To bring more voices to the table and the community oriented decisions on what ethical conduct is, rather than one individual. ● Build public trust in municipal government Page 41  CITY OF PORTLAND ETHICS COMMISSION & CODE OF ETHICS 1. The proper operation of the City of Portland requires that all City officials, whether elected, appointed, or city employees be impartial, equitable, and responsive to the needs of the people and each other in the performance of their respective functions and duties; that proper conduct by City officials will promote public confidence in the integrity of government and will be maintained by all City officials; that public office not be used for personal or financial gain or advantage; and that the structure of City government be used properly in decision and policy-making. In recognition of these goals and the importance of protecting public interest and City officials, an Ethics Commission shall hereby be established for all by the City Council. 1.1 PURPOSE: To provide impartial oversight as to ensure that standards of conduct are defined and upheld; and to make public the sources of income as well as other areas of personal and pecuniary interests to city officials, their family members, and major supporters for purposes of recusal. Section 1.2 Ordinance required. The City Council shall maintain an ordinance defining the code of ethical conduct of elected and appointed City officials, as well as all employees of the City in accordance with all applicable labor laws, contracts, and confidentiality requirements. The ordinance shall be developed and recommended by the Ethics Commission, as provided in Section 2, and be approved and later amended with the approval of 2/3 of City Councilors present and voting. The ordinance shall establish the process for filing complaints and soliciting advisory opinions by residents of Portland and city employees. 1.3 The code shall include and encompass, but not be limited to the following: Standards of Conduct Disclosure of Confidential Information Conflicts of Interest Disclosure of Conflict Determination of Conflict 1.3.1 Whereby the disclosures as provided in Sec. 1.3 wherein prior to being sworn into office, all elected city officials and executive and senior city staff shall complete a disclosure form. The form shall disclose all sources of income, as well as those of close Page 42 family members, in accordance with common and accepted practices consistent with state and community standards. Applicable forms shall be public documents and may be referenced by the public for purposes of recusal. The form shall be updated on an annual basis or upon change of employment or situation. These disclosures shall be made publically accessible and posted together on the city’s website and on the page of that city official as applicable and in accordance with all applicable labor laws, contracts, and confidentiality requirements. 1.4 The Board shall devise, with the assistance from city staff and/or outside counsel, a code of ethics for Portland City officials and employees which shall include but be not limited to: - Councilors - School Board - All other elected officials - All appointments including but not limited to boards, commissions, and task forces - All city employees 1.5 Anyone, whether they be a city official or member of the public, may bring a complaint to the attention of city officials for the purposes of consideration of a conflict of interest or the appearance of a conflict of interest, or for any violation of the code of ethical conduct. Section 2. Formation of Ethics Commission. The ordinance shall direct the formation of an Ethics Commission, consisting of seven (7) members who are residents of the City, to review the code ordinance not less than once every three (3) years. The commission shall be appointed by the City Council. Elected officials, candidates for any elected office, and their immediate family members shall not be permitted to be members of the commission. The commission shall meet as needed, but no less than once every three (3) months. Section 2.1. Independence. The Commission shall remain an independent body, free from interference from any City employees or elected officials. The Commission may request funding from the City Council for an independent investigation as needed. Section 2.2. Term. Commissioners shall serve for a term of three (3) years. Page 43 Section 2.3 Duties. The Commission shall develop the Code of Ethics. The Commission shall provide a report to the City Council no less than annually. The Commission shall consider questions and render advisory opinions. The Commission shall oversee training for elected and appointed officials, as well as members of city staff on the code of ethics and ethical standards. Section 2.3.1. Advisory Opinions. The Ethics Commission or quorum of at least five (5) members, shall be convened on request for an advisory opinion by no less than two (2) members of the City Council, the Mayor, or the Chief Executive Officer of the City. The Commission may issue, at its discretion, advisory opinions upon request of any city officer, official, employee, or resident of the City of Portland at any time. The names of complainants shall be protected by confidentiality, unless they elect to waive it. No complainant shall be retaliated against for filing a complaint. Section 2.3.2. Advisory Interpretation of the City Charter The Ethics Commission may, at its discretion, also render non-binding, advisory opinions on City compliance with The City Charter. The Commission may provide, at its discretion, its written interpretation of the Charter on the written request of any resident or official of the City. The Commission’s interpretation is advisory only and for educational purposes and shall not be the basis for any legal action. A copy of the request and the proposed response shall be provided to the City Council, Mayor and City Manager for review prior to being issued. The Commission may, at its discretion, issue advisory opinions on the adherence of Council and board rules and procedures. They may also request a second legal opinion on behalf of the City Council or any board or committee. The Commission may also request conduct program evaluations and recommend an evaluation be conducted in-house, contracted, or by a specialized hire. Section 2.3.3. Delivery of Advisory Opinion The Ethics Commission shall deliver all advisory opinions including but not limited to ethics violations, conflicts of interest, and charter opinions, to the City Attorney, Chief Executive/Administrator, Mayor and City Council in compliance with applicable law, no less than 14 days after a decision is made. Page 44 2.4 Appointment of Accountability Officer. The Ethics Commission may appoint an Accountability Officer who shall serve as an ombudsperson to members of the public. The Accountability Officer shall provide city information to the public and officials to educate them about government accountability, integrity, and transparency. They also shall receive complaints from the public about alleged government waste, favoritism, mismanagement, and violations of the public trust. The Accountability Officer shall, at their discretion, conduct impartial investigations of such allegations, issue reports, and make recommendations to the Ethics Commission to advance government efficiency, competence, and fairness. The Accountability Officer shall refer any matter alleging corruption, fraud, or abuse to the appropriate law enforcement agency. Section 3. Violations of the Ethics Code. Violations apply to both elected and appointed officials and any member of city staff. If the Commission finds violations of the ethics code, the Commission may recommend, by a simple majority vote, advisory opinions to the applicable hiring authority on any appropriate disciplinary or removal proceedings and notify the city attorney that further action should be taken in accordance with state law. Opinions rendered by the Commission are not legally binding and purely advisory in nature and shall be rendered in accordance with all applicable labor laws, contracts, and confidentiality requirements. In no circumstances shall the ethics commission have access to any personal information protected by state law. Any City Councilor or Mayor found in violation of the ethics code may be reprimanded by the City Council. The Council may decide to do nothing, censure a member, remove a member, or set a recall election. Whichever option is selected, requires a 2/3rds majority vote of the City Council. Suspected criminal conduct shall be reported immediately to the Portland police department. The complainant shall receive a response to the complaint regarding the outcome. Section 3.1 Conflict of Interest of Elected Officials, Boards, and ad hoc Committees 3.1.1 Determination of Conflict Page 45 If the subject is a member of an elected or appointed body, including but not limited to council, board, committee, or task force, the complaint shall be brought to the attention of the chair (or equivalent) of that body. Once the complaint of conflict of interest has been initiated against a member of a body as provided above, the body shall deliberate the matter themselves or refer deliberation to an appropriate office or entity. If the complaint is against the chair, then the complaint shall be brought to the attention of the next most senior member who is not subject of the complaint or who is not the complainant themself. Once a complaint has been made, the subject shall be notified of the complaint and shall have the option to recuse themself or to request deliberation. Public notice shall be given of the complaint unless confidentiality requirements prohibit it. Complaints determined by the chair of the relevant body (or the next most senior member, to whom the complaint is not against) to be frivolous, scurrilous, libelous, baseless, unfounded, of nuisance, or otherwise without account need not be deliberated or referred if the complaint is publicly designated as such. Members of the public may bring their complaint to the entire body or to other city officials including the Ethics Commission. The Commission may refer complaints to the appropriate office or body for consideration. Except as described in the preceding paragraph, all complaints shall be considered or deliberated in as timely a manner as possible and in any case shall be considered in advance of deliberation on the relevant proposal or law. Section 3.2 Acknowledgement of Complaint The complainant shall receive a response to the complaint regarding the outcome. Section 3.3 Failure to Disclose or Comply with Code of Ethics Failure to disclose or comply with the code of ethics shall result in disciplinary action that may include termination of the individual from their position with the city. Page 46  Examples of Ethics Boards/Commissions/Ordinances/Charter Amendments/Disclosure Forms: Bangor, ME: Population: 31,753 ● Ordinance: https://ecode360.com/6889057 ● Charter Amendment (establishes board & requires creation of code): https://ecode360.com/14956369 Waterville, ME: Population: 15,828 ● Ordinance:http://www.waterville-me.gov/ordinances/wp-content/uploads/sites/25/2018/0 2/Ethics-Ordinance-Revised-010518.pdf ● Charter Amendment: Article VI (establishes board & requires creation of code) http://www.waterville-me.gov/clerk/wp-content/uploads/sites/10/2017/08/2020-Charter- with-Revision-Markups.pdf Windham, ME: Population: 18,434 ● Ordinance (establishes both the Ethics Board & code): https://www.windhammaine.us/DocumentCenter/View/1017/Ethics-Policy---Board-of-Et hics?bidId= York, ME: Population 13,723 ● Ordinance (no board established - up to chairs & department heads to regulate conduct): https://www.yorkmaine.org/DocumentCenter/View/1348/a-Code-of-Ethics-2021-06-14?b idId= Bristol, ME: Population 2,834 ● Ordinance (no board established but complaints are brought straight to the selectmen to decide). https://www.bristolmaine.org/sites/g/files/vyhlif4191/f/uploads/code_of_ethics_and_cond uct.pdf Lisbon, ME: Population 9,711 ● Ordinance (establishes an ethics panel of three voters and issues advisory opinions on conflicts of interests) https://library.municode.com/me/lisbon/codes/code_of_ordinances?nodeId=PTICOOR_C H12ETCOIN_S12-3ETPA Ogunquit, ME: Population 1,577 Page 47  ● Ordinance (no board, ethics violations are determined internally on boards and committees) https://www.townofogunquit.org/vertical/Sites/%7B2524508A-BBA7-433A-9EAA-E74 D93FCB25D%7D/uploads/CODE_OF_ETHICS_FOR_BOARDS_AND_COMMITTEE S.pdf Madison, ME: Population 2,433 ● Ordinance (includes ethics board with advisory opinions provided to select board) https://ecode360.com/9856843 Kennebunk, ME: Population 11,536 ● Internal procedures governing rules for the council. https://www.kennebunkmaine.us/DocumentCenter/View/218/Select-Board-Code-of-Ethic s?bidId= Bridgton, ME: Population 5,418 ● Ordinance (establishes penalty for violation and applies to all elected officials and employees) https://bridgtonmaine.org/wp-content/uploads/2017/09/Code-of-Ethics.pdf New York, NY: Population: 8.5 Million ● Charter Chapter 68 (establishes the Conflicts of Interest Board, defines its powers and obligations, defines prohibited interests and conduct, establishes reporting requirements, establishes the Board’s power to impose penalties, authorizes the Board to investigate and adjudicate gifts by lobbyists): https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCcharter/0-0-0-5995 ● The Rules of the City of New York https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-86448 El Paso, TX: Population: 679,813 ● Charter Title 2, Chapter 2.92 (establishes board, Standard of Conduct, duties, jurisdiction, and procedures) https://library.municode.com/tx/el_paso/codes/code_of_ordinances?nodeId=TIT2ADPE_ CH2.92ET_ARTIIIETRECO_2.92.150ADOP ● Ordinance https://library.municode.com/tx/el_paso/ordinances/code_of_ordinances?nodeId=107821 4 Philadelphia, PA: Population 1.58 Million ● Charter Chapter 11 (establishes Board, powers and duties) https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-182492 Page 48  ● Code (defines duties, standards, prohibited conduct, penalties, establishes standard of conduct and financial disclosure requirements) https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-217009 Examples of Charter Compliance Commissions: Provincetown, MA: Population: 2,994 - Charter Compliance Commission ● Charter Amendment: https://www.provincetown-ma.gov/125/Charter-Compliance-Commission ● https://www.provincetown-ma.gov/DocumentCenter/View/202/Charter-PDF?bidId= (page 6) Bourne, MA: Population: 19,872 - Charter Compliance Commission ● Charter Amendment: https://www.townofbourne.com/sites/g/files/vyhlif7346/f/uploads/town_charter_2016.pdf ● https://www.townofbourne.com/charter-compliance Milton, VT: Population 2,507 - Charter Compliance Commission ● Charter Amendment: https://legislature.vermont.gov/statutes/section/24appendix/129/00702 Examples of Disclosure Forms from the State of Maine https://www.maine.gov/ethics/financial-statements/legislators Example of Code of Ethics https://www.windhammaine.us/DocumentCenter/View/1017/Ethics-Policy---Board-of-Ethics?bi dId= Information/Research Consulted 1. Davies, Mark. "Keeping the Faith: A Model Local Ethics Law - Content and Commentary. Fordham Urban Law Journal, vol. 21, no. 1, 1993. a. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article= 1386&context=ulj Outline of types of common ethical violations and sample ordinance language. Page 49 2. Meadows-Keefe, Julie. "From Rumblings to Reality: One City's Story of Ethics Reform." Stetson Law Review, vol. 46, issue 3, 2017. a. https://www2.stetson.edu/law-review/article/from-rumblings-to-reality-one-citys- story-of-ethics-reform/ 3. Leventhal, Stephen J. "Running a Local Municipal Ethics Board: Ten Steps to a Better Board." Municipal Lawyer, vol. 22, no. 4, 2008. a. https://nysba.org/app/uploads/2020/03/EthMuniLawFall08.pdf A guide for ethics board members. 4. Siewert, Wally & Udani, Adriano, "Missouri Municipal Ethics Survey: Do Ethics Measures Work at the Municipal Level?" Public Integrity, vol. 18, issue 3, 2016. a. https://discovery-ebsco-com.wv-o-ursus-proxy09.ursus.maine.edu/c/4klzeq/viewe r/html/yjls2w24bn A quantitative analysis of the types of ethical violations that can be mitigated by ethics measures. Page 50  C. Non-Exempt Employees (Grades 1 -6) 1. Reductions in force of permanent hourly employees will be made by classification and within departments. Hourly employees in an affected classification within a department will be laid off by seniority with the least senior person laid off first. Seniority is defined as continuous permanent City service, including probationary time. 2. Hourly employees faced with lay-off may transfer or bump into other positions on the following basis: a. An employee who would be laid off under Section 1 above may transfer to a vacant position within the City which the employee is qualified to perform as determined by the City. b. If there is no suitable vacant position, the employee may bump a less senior employee in a position within the City which the employee faced with lay-off once held. c. If there is no less senior employee in a position once held, the employee faced with lay-off may bump less senior employees in positions within the City which the employee is qualified to perform, as determined by the City. 3. Employees who transfer or bump into a position under Section 2 above will be compensated at the rate provided in the City's pay plan for that position. Employees cannot transfer or bump into a promotional position nor can they transfer or bump into a union-covered position. Part-time employees cannot transfer or bump into full-time positions. 4. Employees faced with lay-off may accept lay-off rather than transfer or bump into a position under subsection 2 above. 5. Employees who are in fact laid off will receive any separation pay to which they may be entitled. 6. Employees who are laid off will have a 15 month recall to the classification in the Department from which they were laid off. Employees will be recalled in order of seniority. IX. MISCELLANEOUS PROVISIONS 30 Page 51 A. Political Activity While employed by the City, employees may seek or accept nomination or election to any non-partisan office in municipal government (i.e., City or School office), however, in connection with an employee’s campaign, no employee will use City facilities, equipment, materials or supplies to advocate for his or her candidacy, or discuss the employee’s campaign with city or school personnel during the workday, or use any time during the work day for campaigning purposes. At no time may an employee use his or her City position, nor use City facilities, equipment, materials or supplies to communicate, organize, assist or advocate for or against any candidate for elected office, including but not limited to his or her own candidacy, whether for a local, state or federal office, and whether the employee is on or off duty at the time of such use. While employed by the City, employees are to refrain from using their influence publicly for or against any candidate for municipal elective office. City employees are not to circulate campaign literature for elective city officials, nor be in any way concerned with soliciting or receiving subscriptions, contributions, or political service from any person on behalf of any candidate for municipal elective office. Nothing in this paragraph shall be construed to apply to an employee who is seeking any office in municipal government while that employee is working on his or her campaign, subject to the limitation in the paragraphs above. This rule is not to be construed to prevent any City employees from becoming, or continuing to be, members of any political organization, from attending political meetings, or from voting with complete freedom in any election. Employees who are working directly or indirectly under a federal funding status must check with the U.S. Civil Service Commission as to the extent to which participation in State or Federal political activities is allowed under Federal Law. B. Conflicts of Interest In addition to adhering to general standards of conduct for employees of any organization, public employees are expected to treat everyone they serve with complete impartiality and are prohibited from using their official position for personal profit or the profit of friends and family. Employees must comply with the conflict of interest standards of State law 30-A M.R.S.A. Sec. 2605. Outside employment which must be reviewed by the City as part of its regulatory or reviewing authority is prohibited. Employees must also comply with any departmental rules and regulations regarding outside employment. 31 Page 52 C. Employment of Relatives 1. The City discourages the employment of individuals to work in a direct or indirect line of supervision with an employee who is a member of the individual’s family. The City further prohibits an officer or employee of the City from using his or her official position to advance, advocate, hire or promote the employment of that officer’s or employee’s relatives in any City position. An officer or employee of the City may provide a personal reference for a relative who is applying for a position over which that officer or employee does not exercise any direct or indirect supervision or control. An officer or employee of the City shall not be involved in the hiring process for any position if it involves a relative. 2a. The City reserves the right to refuse to appoint a person to a position in the same department, division or facility, wherein his or her relationship to another employee has the potential for creating adverse impact on supervision, safety, security or morale, or involves a potential conflict of interest. The Department Head shall make the determination as to whether such adverse impact exists, subject to review by the City Manager. 2b. In the case of a finding of adverse impact, the Department Head shall make a reasonable effort to see if a written management plan governing the assignment and evaluation of such employee can be put in place which would avoid the conflict and mitigate any adverse impact, prevent favoritism or other improper influences. Any such management plan will be subject to approval by the City Manager at the time of hire and to ongoing oversight by the Director of Human Resources. If the structure or size of the Department does not permit such a management plan, then the City may refuse to appoint that person to the position. 3. The provisions of this section shall apply when a relationship is formed after the date of hire such as through a marriage or domestic partnership. 4. An individual violating these provisions, or hired in violation of these provisions as a result of applicant failure to disclose a relationship, may be subject to disciplinary action, up to and including termination. 5. For purposes of the above provisions, a "relative" is defined as: grandfather, grandmother, father, mother, son, daughter, child of domestic partner, grandson, granddaughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, domestic partner, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, step-father, step-mother, step-son, step-daughter, step-brother, step-sister, half-brother, or half-sister. 32 Page 53 6 The City Manager may provide specific instructions concerning employees or applicants affected by this provision in a manner to safeguard the hiring and promotional opportunities of the individual as well as the objectivity of the process. 33 Page 54 Running a Local Municipal Ethics Board: Ten Steps to a Better Board By Steven G. Leventhal The members of a local her own personal interest. Has she acted immorally? municipal ethics board are Certainly not. However, our well-meaning municipal often respected members employee has acted unethically, because even an in- of the community with no nocent conflict of interest tends to undermine public background in government. confidence in government and justifies the suspicion They may be drawn from that an official action was motivated by personal con- the clergy, and have strong siderations rather than by the public interest. grounding in the principles It is unhelpful to think of government ethics in of their respective faiths; moral terms, because doing so implies a moral failure they may be accomplished among municipal officers and employees, and breeds members of the Bar, thor- resentment among the honest majority, who take right- oughly versed in the code of ful pride in their personal integrity. professional responsibility that governs the practice of law, or they may be civic minded citizens, committed to public service and confi- “Logic and experience indicate that the dent in the wisdom of their own moral compasses. vast majority of municipal officers and But even with these impressive credentials, board employees are honest, and genuinely members may be uncertain of the board’s purpose and function, unaware of the standards of conduct wish to do the right thing.” applicable to municipal officers and employees, and Some laws prohibit conduct that is inherently unfamiliar with the structure, operation and language immoral, such as murder and larceny. This type of of government. misconduct is known as a malum in se. It is prohibited This article is intended to offer them guidance in because it is wrong. But some laws prohibit and even organizing and running their boards. criminalize conduct that would otherwise be perfectly moral because we find it a safer, more economical or more efficient way to organize our society. The Vehicle Step 1: Understand Your Mission and Traffic Law and the Internal Revenue Code are ex- Logic and experience indicate that the vast major- amples of laws that prohibit conduct that is not inher- ity of municipal officers and employees are honest, and ently immoral. This type of misconduct is known as a genuinely wish to do the right thing. The dual goals malum prohibitum. It is wrong because it is illegal. of a municipal ethics program are to assist municipal officers and employees in avoiding ethical missteps Similarly, a local municipal ethics code does not before they occur, and to assure a skeptical public that prohibit conduct because the conduct is morally the decisions of its government are based on the public wrong.1 Rather, it regulates official conduct in order to interest and not on the private interests of the decision achieve the dual goals of assisting honest officers and makers. employees in avoiding ethical missteps before they oc- cur, and inspiring public confidence in government by Many people use the words “morality” and “eth- encouraging high standards of conduct among munici- ics” as if they had the same meaning. This is under- pal officers and employees. Ethics regulations are the standable, because their meanings are similar. Morality rules of the road for official conduct. comes from the Latin word mores, for the characteristic customs and conventions of a community. Ethics comes from the Greek word ethos, for the characteristic spirit Step 2: Learn How to Analyze a Government or tone of a community. But in the applied context of Ethics Problem government ethics, it is inaccurate and unhelpful to So where do you find these rules of the road? They think of these words as having the same meanings. are scattered about in many legal nooks and crannies, including the State Constitution, various state and To illustrate the difference between morality and local statutes, published court decisions, and agency ethics, consider that an honest municipal employee, regulations. But don’t be discouraged. In New York, recognizing that she has a conflict of interest in a most ethics problems can be analyzed by considering particular matter, may choose the official action that three questions: advances the public interest, even at the expense of NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 9 Page 55  • Does the conduct violate Article 18 of the New foster public confidence in government. An appearance York General Municipal Law? of impropriety undermines public confidence. There- fore, courts in some cases have found that government • If not, does the conduct violate the local munici- officials have an implied duty to avoid conduct that se- pal code of ethics? riously and substantially violates the spirit and intent • If not, does the conduct seriously and substan- of ethics regulations, even where no specific statute is tially violate the spirit and intent of the law, and violated.10 thus create a prohibited appearance of impropri- Accordingly, the third question in this protocol ety? for analyzing government ethics problems—Does the Article 18 of the New York General Municipal Law conduct seriously and substantially violate the spirit is the state law that establishes minimum standards of and intent of the law, and thus create a prohibited ap- conduct for the officers and employees of all munici- pearance of impropriety?—may well be posed instead palities within the State, except the City of New York.2 as: How will this conduct look on the front page of the Among other things, Article 18 prohibits a municipal local newspaper? officer and employee from having a financial interest The goal of prevention—and just plain fairness— in certain municipal contracts that he or she has the requires that officers and employees have clear ad- power to control individually or as a board member,3 vance knowledge of what conduct is prohibited, and from accepting gifts or favors worth $75 or more what conduct is not. Discernable standards of conduct where it might appear that the gift was intended to help dedicated municipal officers and employees to reward or influence an official action,4 from disclosing avoid unintended violations and unwarranted suspi- confidential government information,5 from receiving cion. When the board finds that there is a prohibited payment in connection with any matter before his or appearance of impropriety, the finding should have her own agency,6 and from receiving a contingency fee a rational basis, and the board’s reasoning should in connection with a matter before any agency of the be clear and convincing. Such a finding should be municipality.7 reserved for the rare cases involving conduct that is If you find that the conduct under review violates contrary to public policy, and that raise the specter Article 18, you are finished with your analysis. The of self-interest or partiality. It should not be found in conduct is prohibited by state law and you need go cases where the improper appearances are speculative no further. But if you find that the conduct does not or trivial.11 violate Article 18, you must ask yourself the second Where a contemplated action by an official might question: Does the conduct under review violate the create an appearance of impropriety, the board should local municipal code of ethics? recommend that the official refrain from acting. But Local municipalities are authorized by Article 18 ethics boards should be restrained in finding, after the to adopt their own codes of ethics.8 A local ethics code fact, that an official’s conduct violated the implied duty may not permit conduct that is prohibited by Article to avoid appearances of impropriety. They should be 18. However, a local code may be stricter than Article especially restrained in finding that a member of a vot- 18. It may prohibit conduct that Article 18 would ing board, and in particular a legislator, was required allow.9 Local ethics codes typically fill gaps in the to refrain from participating in a matter called for a coverage of Article 18 by, among other things, closing vote, because an abstention by a member of a vot- the “revolving door” (post-employment contacts with ing body will normally be counted as a “nay” vote,12 the municipality), establishing rules for the wearing and because the recusal of a legislator disenfranchises of “two hats” (the holding of two government posi- voters. tions, or moonlighting in the private sector) and, in some cases, prohibiting “pay to play” practices and Step 3: Set the Right Tone—Be Credible the political solicitation of subordinates, vendors and contractors. By setting the right tone, the board can bet- ter advance the dual goals of helping the municipal If, after determining that the conduct under re- workforce avoid ethical missteps before they occur and view does not violate Article 18, you find that it does inspiring public confidence in government decision violate your local ethics code, your analysis is done. making. The conduct is prohibited by local law. But, if you find that the conduct neither violates Article 18 nor the One clear lesson of recently publicized scandals local code of ethics, there is yet another question that is that an otherwise forgiving public will not abide you must consider. hypocrisy. Board members should scrutinize their own investment, business or political activities, and rid Ethics regulations are not only designed to pro- themselves of conflicts. They should avoid entangle- mote high standards of official conduct, but also to ments that might cast doubt on their objectivity. 10 NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 Page 56  A board that is perceived as politically motivated and to allow for the services of a stenographer when will have no credibility as the source of ethics advice a hearing is conducted. Because the activities of the or the arbiter of ethics disputes. Rather than inspire board may sometimes be controversial, its expendi- public confidence, it will reinforce public cynicism. tures for these purposes, within the limits of a modest Board members should avoid partisanship in their budget, should not be subject to external approval. official and unofficial activities. They should banish political considerations from their deliberations and Step 5: Get the Message Out—Be Proactive decision-making. Many local ethics boards never meet, and are com- Most ethics inquiries escape public notice. But pletely ignored by their respective municipalities. But some draw intense public attention and attract press because the municipal ethics program is designed to inquiries. The board is a deliberative body and speaks help officers and employees avoid inadvertent ethical only through its duly rendered opinions and deci- violations, it is essential that the board actively pro- sions. Individual board members should avoid public mote awareness among them of their ethical obliga- statements that may send mixed messages, and may tions, and encourage them to seek ethics advice when undermine the force and credibility of the board’s questions arise. determinations. Ethics codes tend to be drafted by lawyers, written According to Socrates, there are four things that a in legalese, and unintelligible to the common reader. Yet judge must do: listen patiently, speak wisely, deliberate the municipal workforce is mostly composed of non- soberly, and decide impartially. This ancient admoni- lawyers, all of whom must adhere to the code of ethics. tion is a worthy guide for the members of a municipal Therefore, every municipality should prepare and ethics board in the discharge of their official duties. distribute a plain-language guide to government ethics no more than two or three pages in length.15 Step 4: Empower the Board to Control Its Own The plain-language guide should include a short Business—Be Independent and simple statement of purpose. It should note that There is an understandable tendency for a munici- the guide was prepared to assist officers and employ- pal administration to exercise direct or indirect influ- ees in avoiding actual or potential conflicts of interest, ence over its appointed boards and commissions. This but that it is not intended to replace the actual text of may occur with the best of intentions. For example, the local code of ethics. It should incorporate—in plain a municipal attorney or other official appointed to a language—the mandates of Article 18 and the stan- board may feel that he or she is in the best position to dards adopted by the local municipality in its code of call meetings, set the agenda, or guide the board in ethics, and should advise against conduct that creates its deliberations. But an ethics board dominated by an appearance of impropriety. administration insiders cannot exercise independent The plain language guide should inform municipal judgment and oversight. officers and employees that they may obtain free, confi- To ensure both the reality and the perception that dential ethics advice from the board of ethics, and pro- the board can and does operate independently, the vide the board’s contact information. It should encour- board should select its own chair. Like all boards, the age officers and employees to resolve any doubts they ethics board must conduct its business at meetings at- may have about their ethical obligations by obtaining tended in person by a quorum of its members.13 Meet- the board’s advice before acting. ings should be called by the chair, or by a majority of Ethics training is another important means of get- the members. ting the message out. A regular series of educational A clerical employee should be appointed by the programs should be conducted at convenient times municipality to serve as secretary to the board, under and places so that they may be widely attended by the direction of the chair. The secretary should be re- municipal officers and employees. Experience indicates sponsible for sending notices, receiving inquiries and that daytime programs will be widely attended by complaints, keeping minutes, maintaining the trans- employees, even if attendance is not mandatory. Eve- actional, applicant and annual disclosure statements ning programs are generally more convenient for the filed with the board,14 and keeping an indexed file of members of boards and commissions, many of whom the board’s opinions and decisions. hold full-time outside employment. Under normal circumstances, the municipal at- torney will serve as counsel to the board. The board Step 6: Master the Art of Giving Ethics Advice should have a modest but sufficient budget to obtain The day will come. You may be at a cocktail party, independent legal advice on the rare occasions when or at a community event. You will be approached by an the municipal attorney may have a conflict of interest, acquaintance who has heard of your appointment to NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 11 Page 57 the ethics board and wishes to discuss an ethics ques- outside job would be compatible with the employee’s tion. But beware. You probably won’t have all the facts government duties.18 Untimely ethics advice is use- that you will need to give a proper answer. Certainly, less to the inquiring officer or employee, discourages you don’t want to be cited as having approved a code officers and employees from seeking advice before act- violation. Ethics inquiries often involve the exercise ing, and undermines the purpose of preventing ethics of judgment. The exchange of opinions among board violations before they occur. members is an important part of the decision-making The board’s job is to interpret the obligations of process. All ethics inquiries should be referred to the officers and employees under the code of ethics and full board for determination. related authorities. Not every question posed to the The board should respond only to written requests board of ethics will raise a government ethics issue. For for ethics advice, and should only decide actual “cases example, the professional conduct of attorneys—even and controversies.” Fact-finding is a critical step in municipal attorneys—is governed by the Lawyer’s rendering ethics advice. Only the facts of a particular Code of Professional Responsibility.19 Officers and em- case will determine the issues that you must consider. ployees seeking advice about the professional obliga- The particular facts of an actual case will often deter- tions of attorneys should be referred to the professional mine the outcome of an ethics inquiry. When a request ethics committee of the local bar association. Inquiries is made for general information about the ethics code, that pose questions of municipal law should be re- the board should respond by providing the inquiring ferred to the municipal attorney. party with a copy of the plain-language guide. In drafting your advisory opinions, remember that The board of ethics should maintain a record of confidentiality advances the purposes of the municipal the question that was posed, and the information that ethics program by encouraging officers and employees it relied on in reaching its opinion. It should carefully to seek advice before acting. Where possible, an ad- consider whether it has all the facts that it needs to visory opinion should omit the name of the inquiring form an opinion. Ethics questions are often more com- officer or employee, and any other identifying facts. plicated than they appear. If an employee holds a civil Your task will be easier if you develop a template service title, you may need to review the job descrip- for drafting opinions. First frame the issue presented. tion associated with that title. But perhaps the employ- Next, set forth the governing authority. Discuss how ee is working “out of title,” performing functions that the law applies to the facts, and then state the board’s are not part of his or her job description. Conflicts may conclusion. Advisory opinions should identify which sometimes arise based on the duties associated with a board members participated in the matter, and any job title, or they may arise based on the duties actually members who may have recused themselves.20 They performed. You may need to know whether a particu- should be dated and signed by the chair, and delivered lar employee is a “policy maker,” or is in a position to only to the inquiring officer or employee unless he or influence policy making. You may need to know how she consents to a broader distribution. a particular agency interacts with another. Once you have gathered your facts, you still may not know the In framing the issue, keep in mind that if the ad- whole story. To avoid setting a bad precedent, limit the vice applies only to the inquiring officer or employee, application of your opinion to the facts presented. the board’s opinion is more likely to be exempt from disclosure under the New York Freedom of Informa- Article 18 authorizes a county ethics board to act tion Law, and it is more likely that the board’s delib- with respect to officers and employees of the county, erations may be conducted in executive session under and with respect to officers and employees of a mu- the Open Meetings Law.21 On the other hand, deter- nicipality within the county that has not established its minations that are broad declarations of policy may be own board of ethics.16 A municipal ethics board other subject to disclosure under the Freedom of Informa- than a county board may act only with respect to its tion Law, and the proceedings that produce them may own officers and employees.17 Ethics advice is intend- be subject to public access under the Open Meetings ed to provide a shield against unwarranted criticism Law.22 Because officers and employees are more likely for honest officers and employees, not a sword for use to seek ethics advice when their inquiries are treated as by political or personal foes. Typically, a local munici- confidential, local municipal ethics boards should con- pal ethics board is authorized to give advice only to duct their advisory function in a manner that is likely officers and employees inquiring about themselves. to preserve the privacy of the inquiring parties. The board should act promptly when it receives a Courts give great weight to the advisory opinions request for ethics advice. Many inquiries will be time sensitive. For example, an outside job opportunity of local municipal ethics boards.23 In giving ethics may be lost while a municipal employee waits for the advice, be reasonable and practical. Keep in mind that ethics board to determine whether the duties of the inconsistent rulings encourage skepticism. But don’t 12 NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 Page 58 ignore the lessons of experience. Respect your own may not have the resources to adequately discharge precedents, but take a fresh look when warranted. this responsibility on its own without the assistance of Remember that your goals are to assist honest officers staff assigned by the municipality to handle the daily and employees in avoiding ethical missteps before administrative and clerical duties that such a program they occur, and to inspire public confidence in gov- entails. ernment by encouraging high standards of conduct Even where the board of ethics has delegated the among municipal officers and employees. Treat every day-to-day administration of the financial disclosure request for ethics advice as a teaching opportunity. law to staff, it still may be called upon to inspect the Write advisory opinions that are clear, explanatory and annual disclosure statements for the purpose of detect- educational. ing any actual or potential conflicts that they may reveal. Undoubtedly, this task will be performed with- Step 7: Adopt Rules of Procedure for out the assistance of investigators, auditors or forensic Investigating Complaints experts. The board should exercise care in developing Unlike a request for ethics advice, an ethics procedures for the review of annual disclosure state- complaint can normally be filed by anyone—even ments, and in establishing the parameters of its review, anonymously—or the board may initiate an investiga- in order to avoid the potential that its members will tion on its own. Article 18 does not provide guidelines later be blamed for failing to catch an actual or poten- for the investigation of complaints by a local ethics tial conflict. board. Particular practices vary from one municipality to another, based on the board’s mandate as set forth Step 9: Know What to Expect if the Board or Its in the local code of ethics. Members Are Sued Consistent with the authority conferred on the Because they are not “final determinations,” board by the local code of ethics, the board should the advice given by an ethics board is not subject to adopt its own rules of procedure for investigating judicial review and reversal.26 As a result, there are complaints, and have them in place before a complaint few reported cases involving challenges to the deci- is received or an investigation is required. In adopting sions of local municipal ethics boards. But when an its rules, the board should be mindful of the funda- ethics board engages in the quasi-judicial function of mental requirements of due process: notice and an determining whether an ethics violation has occurred, opportunity to be heard.24 or imposes a fine or other penalty, its decisions will be subject to judicial review in a proceeding under Article The board should preserve a record of the com- 78 of the New York Civil Practice Law and Rules.27 plaint, all notices to and from the board, and all evi- dence that it receives in the course of its investigation In an Article 78 proceeding, the petitioner will including documents and testimony. The board should have the burden of proving that the board’s determina- work closely with its counsel to ensure that the result tion was illegal, arbitrary or capricious, that the board of its investigation will withstand judicial review. (For abused its discretion, or that the decision was unsup- a discussion of what to expect if the board or its mem- ported by substantial evidence.28 bers are sued, see Step 9.) Lawsuits brought against the board will nor- If the facts alleged by the complainant or discov- mally be handled by the municipal attorney, or other ered by the board raise the suspicion that a crime may counsel retained by the municipality, at no cost to the have been committed, the matter should be referred individual board members. But what if the individual to the District Attorney. To avoid interfering with the board members are sued by an aggrieved party? The District Attorney’s investigation or prosecution of the individual members of a local municipal ethics board case, the board should refrain from acting while the are entitled to a qualified immunity from individual matter is under investigation or prosecution by the liability where they exercised discretion within the District Attorney’s office. scope of their official duties, and where they have not violated a plaintiff’s constitutional rights.29 Step 8: Develop Procedures for Review of A municipality may, by local law, provide for the Annual Disclosure Statements defense and indemnification of its officers and employ- In municipalities having populations of 50,000 or ees in civil claims arising out of their acts or omissions more, the board of ethics is usually charged with the while acting within the scope of their official duties, responsibility of administering the financial disclosure except where the claim is brought by or on behalf of law adopted pursuant to Article 18.25 Depending upon the municipality. The indemnification will not apply to the number of officers and employees required to file judgments based on intentional wrongdoing or reck- financial disclosure statements, the board of ethics lessness, or to awards of punitive damages.30 Where NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 13 Page 59 the municipality provides an officer or employee with Articles by Professors Mark Davies, Patty Salkin, defense and indemnification, any settlement of the Les Steinman and others are available online. For claim is subject to approval by the municipality.31 example, back issues of this publication, the NYSBA/ MLRC Municipal Lawyer, are available to members The municipality may purchase insurance to fund of NYSBA’s Municipal Law Section on its Web site at its obligations under the indemnity,32 or it may pur- www.nysba.org/MunicipalLawyer. The Association’s chase liability insurance to protect its officers and em- Municipal Law Section is a ready source of ethics ployees from liability arising out of the performance education and support. An extensive online ethics their official duties even without a local law providing library is available at the Web site of the New York City for the defense and indemnification of officers and em- Conflicts of Interest Board. ployees by the municipality.33 Board members should inquire whether their municipality has adopted a local An extensive library of local municipal codes is law providing for the defense and indemnification of available on the Web site of “e-codes.” Advisory opin- its officers and employees, and whether the munici- ions of the New York Attorney General and the New pality has purchased insurance to protect them from York Comptroller are available on their respective Web liability arising from the performance of their official sites. Helpful information is available online to mem- duties. bers of the New York State Association of Counties, the Association of Towns of the State of New York, the A lawsuit against the board of ethics or its mem- New York Conference of Mayors and Municipal Offi- bers may pit the interests of branches, departments or cials, and the Conference on Government Ethics Laws. agencies of government, or those of individual officers or employees, against one another, and may present Congratulations and good luck. Your work is the municipal attorney with a professional conflict of among the most important in government. interest. It is sometimes difficult to determine whether a municipal attorney has a professional conflict of Endnotes interest because he or she may, at various times, owe 1. In some instances, a municipal officer or employee may engage a duty of loyalty to one or more individual officers in morally culpable misconduct. But such cases are more likely or employees, branches, departments or agencies of to be prosecuted by the local district attorney’s office than government, the government as a whole, or directly by the local municipal ethics board, and they are more likely to the public.34 This distinction is important because to be prosecuted as violations of the New York Penal Law than as violations of the state or local codes of ethics. See, e.g., conversations with a municipal attorney will not be Penal Law § 195.00 (official misconduct) and art. 200 (bribery privileged unless they occur between the municipal involving public servants and related offenses). attorney and his or her client.35 2. For a helpful summary of Gen. Mun. Law Article 18, see Davies, Article 18: A Conflicts of Interest Checklist for Municipal Officer and The joint defense of a municipality and the indi- Employees, NYSBA/MLRC Municipal Lawyer, Summer 2005, vidual members of a municipal board will give rise Vol. 19. No. 3, pp. 10–12. to a professional conflict where the defendants assert 3. See Gen. Mun. Law §§ 800-805. inconsistent defenses. A professional conflict would 4. See Gen. Mun. Law § 805-a. also arise where the individual board members are 5. Id. N.B. The phrase “confidential information” is not defined sued for punitive damages, because a municipality in Gen. Mun. Law Article 18. Taken together, the Freedom cannot be liable for punitive damages.36 Clients may of Information Law (Pub. Off. Law, art. 6) and the Open waive the professional conflict by giving informed Meetings Law (Pub. Off. Law, art. 7) are a powerful legislative consent if a disinterested lawyer would conclude that declaration that public policy disfavors government secrecy. See Leventhal and Ulrich, Running a Municipal Ethics Board: Is Ethics defense counsel’s professional judgment would not be Advice Confidential?, NYSBA/MLRC Municipal Lawyer, Spring impaired by the joint representation.37 In cases where 2004, Vol. 18, No. 2, pp. 22–24. For a suggested definition of the municipal attorney has a professional conflict of “confidential information” in the context of Gen. Mun. Law, interest, the indemnified officer or employee is en- Article 18, see Leventhal, Running a Local Municipal Ethics Board: Glossary of Municipal Ethics Terms, NYSBA/MLRC Municipal titled to be represented by private counsel of his or her Lawyer, Spring 2006, Vol. 20, No. 2, pp. 20–21 (Confidential choice.38 Information. Information in any format that is either (1) prohibited by federal or state law from disclosure to the public, or (2) prohibited from disclosure by local law, ordinance, or Step 10: Take Advantage of Ethics Resources resolution of the municipality, and exempt from mandatory disclosure under the New York State Freedom of Information We are fortunate that several dedicated govern- Law (FOIL) and the New York State Open Meetings Law). ment ethicists have labored in recent years to orga- 6. Supra, n. 4. nize the subject of government ethics into a coherent 7. Id. discipline, and to develop a body of written materials available to assist local municipal ethics boards in do- 8. See Gen. Mun. Law § 806. ing their important and difficult work. 14 NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 Page 60 9. See Davies, Enacting a Local Ethics Law—Part I: Code of Ethics, Administration, NYSBA/MLRC Municipal Lawyer, Winter NYSBA/MLRC Municipal Lawyer, Summer 2007, Vol. 21, No. 2008, Vol. 22, No. 1, pp. 11–16. 3, pp. 4–8. 25. See Gen. Mun. Law §§ 810, 811, 812. 10. See, e.g., Zagoreos v. Conklin, 109 A.D.2d 281, 491 N.Y.S.2d 358 26. See Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of (2d Dep’t 1985); Tuxedo Conservation and Taxpayer Association v. City of N.Y., 5 N.Y.3d 30 (2005), reargument den. 5 N.Y.3d 824 Town Board of Tuxedo, 69 A.D.2d 320, 418 N.Y.S.2d 638 (2d Dep’t (2005); Stop-The-Barge v. Cahill, 1 N.Y.3d 218 (2003); Scarpati- 1979). Reilly v. Town of Huntington Bd. of Ethics & Fin. Disc., 300 11. See Peterson v. Corbin, 275 A.D.2d 35, 713 N.Y.S.2d 361 (2d Dep’t A.D.2d 404, 751 N.Y.S.2d 753 (2d Dep’t 2002); Neale v. Cohen, 2000). 281 A.D.2d 421, 721 N.Y.S.2d 110 (2d Dep’t 2001); Hammer v. Veteran, 86 Misc. 2d 1056, 386 N.Y.S.2d 170 (Sup. Ct. West. 12. See Gen. Const. Law § 41. 1975), aff’d, 53 A.D.2d 629, 385 N.Y.S. 2d 1017 (2d Dep’t 1976). 13. Pub. Off. Law §§ 100–111 (Open Meetings Law); see Freeman, 27. See, e.g., Gray v. Epstein, 2008 N.Y. Slip Op 51706U (Suff. Co. Board of Ethics: Public Disclosure? NYSBA/MLRC Municipal Sup. Ct. 2008) (Petitioner appealed decision of the Town of Lawyer, Spring 2008, Vol. 22, No. 2, pp. 12–15; Leventhal Smithtown Ethics Board that she violated the town code of and Ulrich, Running a Municipal Ethics Board: Is Ethics Advice ethics, and imposed a civil penalty of $3,500; court affirmed the Confidential?, NYSBA/MLRC Municipal Lawyer, Spring 2004, board’s decision, but set aside the monetary penalty because Vol. 18, No. 2, pp. 22–24. the Code did not provide the Ethics Board with the authority to 14. For a thorough discussion of the types of disclosure statements impose monetary penalties.). typically filed with a local municipal ethics board, see Davies, 28. See N.Y. Civ. Prac. Law & Rules § 7803. Enacting a Local Ethics Law—Part II: Disclosure, NYSBA/MLRC Municipal Lawyer, Fall 2007, Vol. 21, No. 4, pp. 8–17. 29. See Shechter v. Comptroller of City of New York, 79 F.3d 265 (2d Cir. 1996). 15. A library of plain-language guides and leaflets is posted on the Web site of the New York City Conflicts of Interest Board. 30. Pub. Off. Law § 18 (Defense and indemnification of officers and public entities). 16. See Gen. Mun. Law §§ 808(2)-808(4). 31. Id. 17. Id. 32. Id. 18. In the absence of a constitutional or statutory prohibition, an official may hold two public offices, or a public office and a 33. Gen. Mun. Law § 52 (Liability insurance for officers and position of secondary employment, unless the duties of the employees). two positions are incompatible. See People ex rel. Ryan v. Green, 34. See Salkin, Beware: What You Say to Your Government Lawyer May 58 N.Y. 295 (1874). Be Held Against You—The Erosion of the Government Attorney- 19. N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200. Client Confidentiality, 35 Urb. Law 283 (2003); Salkin and Phillips, Program On Law And State Government Fellowship 20. Where a board member recuses himself or herself due Symposium: Integrity in Public Service: Living Up to the Public to a conflict of interest, the member should refrain from Trust? Eliminating Political Maneuvering: A Light in the Tunnel participating in the discussion, deliberations or vote on the for the Government Attorney-Client Privilege, 39 Ind. L. Rev. 561 matter. See 1995 Op. Atty. Gen. 2. For a helpful discussion (2006). of the principles applicable to recusal and abstention, see Steinman, Recusal and Abstention from Voting: Guiding Principles, 35. Id. NYSBA/MLRC Municipal Lawyer, Winter 2008, Vol. 22, No. 1, 36. See Cook County, Illinois v. U.S. ex rel. Chandler, 538 U.S. 119, pp. 17–19. 129 (2003) (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 21. See Leventhal and Ulrich, Running a Municipal Ethics Board: Is 259–260 (1981); Sharapata v. Islip, 56 N.Y.2d 332 (1982). Ethics Advice Confidential?, Municipal Lawyer, Spring 2004, Vol. 37. N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200.24(c)(DR 5–105). 18, No. 2, pp. 22-24; N.Y. Comm. on Open Gov’t. FOIL Adv. Op. 8922 (1995); OML Adv. Ops. 2269 (1993), 2805 (1997). 38. Pub. Off. Law § 18 (Defense and indemnification of officers and public entities). 22. Id.; see also Freeman, Board of Ethics: Public Disclosure?, NYSBA/ MLRC Municipal Lawyer, Spring 2008, Vol. 22, No. 2, pp. 12–15. Steven G. Leventhal is an attorney and certified 23. See Byer v. Town of Poestenkill, 232 A.D.2d 851, 648 N.Y.S.2d 768 public accountant. He is a partner in the Roslyn law (3d Dep’t 1996); Parker v. Gardiner Planning Bd., 184 A.D.2d firm of Leventhal and Sliney, LLP. Steve is the for- 937, 585 N.Y.S.2d 571 (3d Dep’t 1992); DiLucia v. Mandelker, 110 A.D.2d 260, 263, 493.N.Y.S.2d 769, 771 (1st Dept. 1985), aff’d, 68 mer chair of the Nassau County Board of Ethics. He N.Y.2d 844 (1986). currently serves as Village Attorney for the Village 24. For further advice on investigations and enforcement of Muttontown, and as counsel to several municipal procedures, see Davies, Enacting a Local Ethics Law—Part III: boards. SLeventhal@ls-llp.com. NYSBA/MLRC Municipal Lawyer | Fall 2008 | Vol. 22 | No. 4 15 Page 61 FROM RUMBLINGS TO REALITY: ONE CITY’S STORY OF ETHICS REFORM Julie Meadows-Keefe* I. INTRODUCTION We will never bring disgrace on this our City by an act of dishonesty or cowardice. We will fight for the ideals and Sacred Things of the City both alone and with many. We will revere and obey the City’s laws, and will do our best to incite a like reverence and respect in those above us who are prone to annul them or set them at naught. We will strive unceasingly to quicken the public’s sense of civic duty. Thus, in all these ways, we will transmit this City not only, not less, but greater and more beautiful than it was transmitted to us.1 Thousands of years after the authorship of the Athenian Oath, this Article tells one City’s story of the evolution of its ethics program and reflects my experience as the first Ethics Officer in the City of Tallahassee.2 It provides both a history of Tallahassee’s Independent Ethics Board3 and a framework of sorts for other local governments to consider as they enhance or develop their own ethics programs. * © 2017, Julie Meadows-Keefe. All rights reserved. Independent Ethics Officer, City of Tallahassee. J.D., Florida State University, 1993; B.A., Stetson University, 1990. Phi Beta Kappa; Florida State Law Review; Florida State Moot Court Team. The Author would like to thank the “original six” Independent Ethics Board Members, Chair Lila Jaber (Stetson, B.A. and J.D.), co-chair Richard Herring, Cecil Davis Funmi Ojetayo, Tom Friedman, and Renee McNeill for actively helping to build this Board from the ground up. The Author would like to dedicate this Article to retired Stetson faculty member Dr. T. Wayne Bailey, who influenced her and so many others to pursue careers in law and government. 1. The ATHENIAN OATH, NAT’L LEAGUE OF CITIES, http://www.nlc.org/build-skills-and- networks/resources/cities-101/city-factoids/the-athenian-oath (last visited Apr. 18, 2017). 2. Taking the Lead on Ethics, CITY OF TALLAHASSEE (Sept. 30, 2014), https://www .talgov.com/main/news/4393.aspx. My perspective on being the Ethics Officer provided fodder for a talk, which I gave at a TEDx event at Florida State University. Julie Meadows-Keefe, Exiting the Echo Chamber to Enter Civic Engagement (TEDx Talk Video June 29, 2016), https://www.youtube.com/watch?v=qzDwygnrDsc. 3. Ethics Board: Background Information, CITY OF TALLAHASSEE, available at https://www.talgov.com/main/ethics.aspx (last visited Apr. 18, 2017). Page 62 590 Stetson Law Review [Vol. 46 The media, polls, and widely expressed citizen attitudes would seem to indicate that, overall, people lack high levels of trust in government.4 However, Florida’s Constitution declares that “[a] public office is a public trust.”5 In 1968, Florida was one of the first states to adopt an ethics code. It went on to establish the Florida Commission on Ethics in 1976.6 The Florida Ethics Code contains standards of ethical conduct and disclosures applicable to all public officers, employees, candidates, lobbyists, and others involved with Florida’s state and local government. The Code, however, does not apply to judges.7 The “ethics law[s] rest[] upon a triad of provisions: an understandable and comprehensive Code, . . . sensible disclosure, and a reasonable enforcement mechanism.”8 Issues to grapple 4. See, e.g., Beyond Distrust: How Americans View Their Government, PEW RES. CENTER (Nov. 23, 2015), http://www.people-press.org/2015/11/23/1-trust-in-government- 1958-2015/ (providing a survey sample of citizens’ concerns regarding the ability of the government to solve important national problems); but see Justin McCarthy, Americans Still Trust Local Government More Than State, GALLUP (Sep. 22, 2014), http://www.gallup.com/poll/176846/americans-trust-local-government-state.aspx (indicating that citizens tend to have more trust in local government than in national government). 5. FLA. CONST. art. II, § 8. See also History, FLA. COMMISSION ON ETHICS, http://www.ethics.state.fl.us/AboutUs/History.aspx (last visited Apr. 18, 2017) (describing the implementation of Florida’s ethical standards for public officials in order to protect the public trust against abuses); Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees, FLA COMMISSION ON ETHICS 1 (2016), http://www.ethics .state.fl.us/Documents/Publications/GuideBookletInternet.pdf (describing the purpose of the Code of Ethics as “to ensure that public officials conduct themselves independently and impartially, not using their offices for private gain other than compensation provided by law”). 6. FLA. COMMISSION ON ETHICS, supra note 5, at 1. 7. FLA. STAT. § 112.311(5) (2016). 8. Mark Davies, Keeping the Faith: A Model Local Ethics Law––Content and Commentary, 21 FORDHAM URB. L.J. 61, 68 (1993) [hereinafter Keeping the Faith]. See also Wyzykowski v. Rizas, 626 A.2d 406, 414 (N.J. 1993) (citing the “Pane Principles,” which identify the various circumstances requiring disqualification for ethical challenge). These include: (1) “Direct pecuniary interests,” when an official votes on a matter benefiting the official’s own property or affording a direct financial gain; (2) “Indirect pecuniary interests,” when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) “Direct personal interest,” when an official votes on a matter that benefits a blood relative or close friend in a non-financial way[;] . . . and (4) “Indirect Personal Interest,” when an official votes on a matter in which an individual’s judgment may be affected because of membership in some organization and a desire to help that organization further its policies. Id. (quoting Michael A. Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II, New Jersey Municipalities at 8–9 (Mar. 1980)). Page 63 2017] One City's Story of Ethics Reform 591 with in government ethics include using public office for private gain; recusal, gifts; conflicts of interest; disclosure; political solicitation; improper influence of officials by private persons; outside employment; and revolving doors, which speaks to leaving a public-sector job and going into the private sector utilizing connections made in public service.9 “Appearances and public perception play an enormously important role in the effectiveness of officials and in the well-being of their communities.”10 Adding complexity to this situation is that conduct, which presents poor optics to the public, does not always violate any federal, state, or local ethics law––it simply fails to pass “the smell test.”11 As one court noted, “Whether conspicuously or not, the co-mingling of business and legislative interests to date has resulted in a Darwinian hybrid where it is difficult to discern where the legislative responsibilities separate from . . . business responsibilities.”12 The public legitimately expects public officials and employees to be impartial, responsible, honest, trustworthy, and independent of outside influence.13 Indeed, most public servants 9. Keeping the Faith, supra note 8, at 69–71; see also Vincent R. Johnson, Ethics in Government at the Local Level, 36 SETON HALL L. REV. 715, 728 (2006) (identifying a similar list of concerns to be addressed in an effective local government ethics code); Deborah Markowitz, A Crisis in Confidence: Municipal Officials Under Fire, 16 VT. L. REV. 579, 597 (1992) (listing a similar group of ethical concerns faced by municipal officials); Robert Wechsler, Revolving Door Provisions in Local Government Ethics Codes, CITYETHICS.ORG (Mar. 23, 2010), http://www.cityethics.org/content/revolving-door- provisions-local-government-ethics-codes (discussing specific ethical issues involved in allowing public officials to move between the public and private sector). 10. Keeping the Faith, supra note 8, at 66; see also John M. Carbone, Ethics: More Than Not Being Indicted, N.J. LAW., December 2006, at 29 (stating that a public official, independently of his good intentions, will be judged by his acts). 11. See, e.g., Patricia E. Salkin, Ethics in Land Use: Using Ethical Allegations as a Sword Rather as a Shield, 33 REAL EST. L.J. 100, 100–01 (2004) [hereinafter Ethics in Land Use] (discussing courts’ findings of ethical misconduct in land use cases in which there has not been a particular violation of state or federal law); Patricia E. Salkin, Ethics Allegations in Land Use Continue to Fill the Court Dockets, 26 ZONING & PLAN. L. REP. 1, 1–3, 6–7 (Apr. 2003) (providing a sample of land use cases, some of which were decided by the courts upon considerations of appearance of improper ethical conduct); Patricia E. Salkin, Municipal Ethics Remain A Hot Topic in Litigation: A 1999 Survey of Issues in Ethics for Municipal Lawyers, 14 BYU J. PUB. L. 209, 210 (2000) (discussing legal ethics considerations for municipal lawyers, including the concept of “community standards,” which have the potential to make conduct unacceptable behavior). 12. Ethics in Land Use, supra note 11, at 107. 13. “‘Procedural fairness’ is the ethical responsibility of municipal officials both to conduct proceedings and to fulfill their other duties with openness and objectivity and to treat all that come before them equally.” Markowitz, supra note 9, at 603–04. It encompasses such things as “conflict[s] of interest . . . and discrimination.” Id. at 604. Page 64 592 Stetson Law Review [Vol. 46 display these characteristics.14 “However, . . . the very structure of some local government functions cause ethical conflicts for elected and appointed officials which exacerbates the difficulty of conducting assigned responsibilities [openly] and [equitably].”15 “[F]requent incidents of unethical behavior by municipal officials have a clear deleterious effect on the public’s trust in local government.”16 There is a strong argument that ethics in government should start at the local level because actions of local officials most directly impact citizens.17 Additionally, many elected officials begin their careers at the local government level and if ethics are inculcated at the beginning of a career, chances increase that as the individual moves to a higher office, the high ethical standards will travel with them. Local governments must also strike a delicate balance between ensuring that ethical standards are followed, while simultaneously avoiding overly burdensome requirements that would cause hardship and possibly discourage good people from entering public service.18 Often, county or city ethics initiatives spring up after major corruption scandals.19 For example, in 2009, Palm Beach County was named the “Capital of Florida Corruption” by Time magazine.20 However, there are numerous other instances of 14. Mark Davies, Governmental Ethics Laws: Myths and Mythos, 40 N.Y.L. SCH. L. REV. 177, 178 (1995) [hereinafter Governmental Ethics Laws]; see also Patricia E. Salkin, Failure to Articulate Clear Ethics Rules and Standards at the Local Level Continues to Haunt Local Land Use Decision Makers, 43 URB. LAW. 757, 773 (2011) (recognizing that public servants for the most part act honestly and ethically, and discussing the need for clear ethical rules in land use to encourage this conduct). 15. Douglas Larson, A Model Ethical Code for Appointed Municipal Officials, 9 HAMLINE J. PUB. L. & POL’Y 395, 395 (1989). 16. Markowitz, supra note 9, at 605. 17. Johnson, supra note 9, at 716–17. 18. Id. at 752–53. See FLA. STAT. § 112.311(2) (2016) (establishing that conflict of interest rules should be designed in a way not to unnecessarily prevent the hiring of those best qualified to serve as public servants); Governmental Ethics Laws, supra note 14, at 181 (“[E]thics regulations must encourage, not discourage, good citizens from serving in government. If they do not do that, they have failed and belong in the rubbish heap.”). 19. See Michael Josephson, The Peculiar Concept of Ethics Laws, CITY OF JACKSONVILLE, http://www.coj.net/departments/ethics-office/docs/the-peculiar-concept-of- ethics-laws.aspx (last visited Apr. 18, 2017) (“Historically, legislative bodies have been reactive rather than proactive, doing only what they absolutely must. Thus, existing laws often are a hodgepodge of regulations designed to prevent reoccurrence of specific past improprieties. That’s a big part of the problem.”). 20. Hector Florin, Palm Beach: The New Capital of Florida Corruption, TIME (Jan. 10, 2009), http://content.time.com/time/nation/article/0,8599,1870853,00.html. See also Opinion Staff, Does Palm Beach Still Deserve Moniker, ‘Corruption County’?, PALM BEACH POST, available at http://opinionzone.blog.palmbeachpost.com/2014/11/25/does-palm- beach-still-deserve-moniker-corruption-county/ (last updated Nov. 25, 2014) (discussing Page 65 2017] One City's Story of Ethics Reform 593 corruption in Florida and other states dating back decades.21 To address local concerns, counties and municipalities are permitted under the Florida Ethics Code to enact local ethics codes or ordinances that are stricter than the Florida Ethics Code.22 Twelve counties have adopted ethics codes that are stricter than the state’s ethics code.23 The focus of the stricter codes and ordinances tends to be in the area of voting conflicts, gifts, and financial disclosures.24 Generally, county ethics boards come first and fold into their coverage participating municipalities. Tallahassee did not follow that pattern––there is no county ethics board covering or addressing Leon County where Tallahassee is located. So how did Tallahassee’s rather unique structure come to pass? Part II of this Article sets the scene and describes how citizen perception of the ethical climate in Tallahassee came to a tipping point, which led to the formation of an Ethics Advisory Panel. Part III discusses the activities of the Ethics Advisory Panel and its findings. Part IV sets forth how the City Commission responded to the report. Part V relates to continued citizen engagement and some of the problems with the structure of the Palm Beach County Commission created to combat corruption in the City); OFFICE OF PROGRAM POLICY ANALYSIS & GOVERNMENT ACCOUNTABILITY, PALM BEACH COUNTY COMMISSION ON ETHICS WAS CREATED USING SEVERAL BEST PRACTICES; SOME PROCESSES COULD BE ENHANCED, REP. NO. 13–10, at 1 (Fla. 2013) (providing a review of the Palm Beach County Commission on Ethics, which emerged out of recommendations from a May 2009 grand jury created to propose changes to provide oversight, transparency, and accountability for county and municipal government); Comm’n on Ethics E-Book, PALM BEACH CNTY. COMMISSION ON ETHICS, www.palmbeachcountyethics.com/pdf/Ethics_eBook.pdf. (last visited Apr. 18, 2017) (providing an overview of the Palm Beach County Commission ethics program). 21. See, e.g., Selwyn Raab, Inspectors Seized in Wide Extortion from Restaurants, N.Y. TIMES, Mar. 25, 1988, at A1 (reporting that “[t]wenty-eight . . . health inspectors . . . were charged . . . with extorting hundreds of thousands of dollars from restaurants by threatening to close them or to cite them for sanitation violations”); see also Markowitz, supra note 9, at 579–80 (citing different examples of unethical conduct by state officials around the country). 22. See FLA. STAT. § 112.326 (2016) (“Nothing in this act shall prohibit the governing body of any political subdivision, . . . from imposing upon its own officers and employees additional or more stringent standards of conduct and disclosure requirements than those specified in this part . . . .”). 23. Tough Choices: Florida Counties Bridge the Ethical Policy Gap, LEROY COLLINS INST. 1, 2 (Nov. 2012), http://www.integrityflorida.org/wp-content/uploads/2013/03/ Integrity_Florida_and_LeRoy-Collins-Institute-Tough-Choices-Florida-Counties-Bridge- the-Ethics-Policy-Gap-11.29.12.pdf. These counties include Broward, Clay, Duval, Escambia, Indian River, Lake, Miami-Dade, Orange, Palm Beach, Sarasota, Seminole, and St. Johns. Id. 24. Id. at 2, 5, 9–10, 13–14. Page 66 594 Stetson Law Review [Vol. 46 activism on ethics reform, which ultimately led to the formation and activities of Tallahassee’s Independent Ethics Board. Part VI serves to give an overview of the Independent Ethics Board’s progress during its first eighteen months. Finally, Part VII covers lessons learned and recommendations for other municipalities seeking to implement or enhance their ethics compliance programs. II. BACKDROP FOR CHANGE: CLIMATE AND CONTROVERSIAL VOTES Tallahassee internally audited its ethics program in 2008 and determined that “the City’s ethics program indicated that the program includes many of the components recommended for a strong ethics and compliance program.”25 The audit also found that the program was working effectively to encourage ethical behavior.26 Suggestions included: ● Centralizing resources and directing employees where to obtain ethics assistance; ● Asking employees during department meetings to share ethical dilemmas and how they handled them; ● Cultivating an atmosphere where violation reporting is encouraged and retaliation for reporting is discouraged; ● Improving identification and notification of those required to file ethics disclosure forms.27 Of most concern was the lack of a central point of contact on ethics matters. Employees generally relied on the City Attorney’s office or supervisors to guide them.28 However, this structure had arguably served the City well. From 2002–2012, eleven complaints against City officials had been filed with the Florida 25. Sam M. McCall, Audit of the City’s Ethics Program, Audit Report # 0912, CITY OF TALLAHASSEE, intro page (Apr. 9, 2009), https://www.talgov.com/Uploads/Public/ Documents/auditing/pdf/0912-ethics.pdf. 26. Id. at 1. The City of Tallahassee had a comprehensive ethics and character course for employees. Employees are required to think beyond what the law requires by keeping things like discretion, justice, alertness, tolerance, boldness, responsibility, cautiousness, and wisdom. 27. Id. at intro page. 28. Id. at 37–38. Page 67 2017] One City's Story of Ethics Reform 595 Commission on Ethics.29 In no case was it found that a violation was committed by an elected official. Additionally, no elected official in Tallahassee has ever been arrested for a criminal act.30 Against this rather benign history, what tipped the balance? Mayor John Marks was first elected in 2003 and served three terms––making him Tallahassee’s longest serving mayor.31 The incumbent Democratic Mayor was challenged in 2010 by a Republican opponent.32 Amid the economic downturn in Tallahassee, the election produced acrimony and increased scrutiny of elected officials.33 The Mayor won a third term in August 2010.34 However, acrimony continued. City Hall critics then focused on the past, 2007 and 2008, when Mayor Marks voted four times on matters involving a company represented by his law firm.35 Then, on September 15, 2010, Mayor Marks voted to approve a $1.2 million federal grant involving the City and grant partners Alliance for Digital Equality (“ADE”)36 and the Go Beyond Foundation, while he was a paid member of ADE’s board of advisors.37 Some citizens were critical of these votes and actions.38 One particularly vocal citizen, who unsuccessfully ran for City Commission, habitually came to City Commission meetings and 29. Ethics Advisory Panel, Regular Meeting Minutes, at 5 (May 30, 2013), available at http://www.talgov.com/Uploads/Public/Documents/treasurer/pdf/eap/130530-eap-min.pdf. 30. Id. 31. City of Tallahassee, Celebration Planned to Say Farewell and Thank You to Mayor John Marks, TALLAHASSEE DEMOCRAT (Oct. 18, 2014, 9:22 PM), http://www.tallahassee .com/story/life/chronicle/2014/10/18/celebration-planned-say-farewell-thank-mayor-john- marks/17527875/. 32. Matthew Isbell, The Spectacular Self-Destruction of Steve Stewart, MCI MAPS (Sep. 13, 2014), http://mcimaps.com/the-spectacular-self-destruction-of-steve-stewart/. 33. Id. 34. Liza Park, John Marks Captures Third Term as Tallahassee Mayor, WCTV (Aug. 25, 2010, 7:16 AM), http://www.wctv.tv/home/headlines/101446819.html?site=mobile. 35. Jeff Burlew, Settlement Unlikely as Court Date Nears in Mayor Marks Case, TALLAHASSEE DEMOCRAT: STAFF BLOGS (Sep. 12, 2012), http://blogs.tallahassee.com/ settlement-unlikely-as-mayor-marks-court-date-nears/; see also Lanetra Bennett, More Ethics Complaints Filed Against Tallahassee Mayor, WCTV (May 24, 2011, 5:54 PM), http://www.wctv.tv/home/headlines/Two_Ethics_Complaints_Filed_Against_Tallahassee_ Mayor_120677539.html. 36. James Taylor, Tallahassee Mayor Verbally Attacks Citizen Who Filed Ethics Charges, MEDIA TRACKERS (June 28, 2012), http://mediatrackers.org/florida/2012/06/28/ tallahassee-mayor-verbally-attacks-citizen-who-filed-ethics-charges. 37. Burlew, supra note 35. 38. Sean Rossman, City Commission Gets Rid of ‘Kill Switch,’ TALLAHASSEE DEMOCRAT (July 3, 2014, 11:16 AM ET), http://www.tallahassee.com/story/news/local/ 2014/07/02/city-commission-gets-rid-of-kill-switch/12116797/. Page 68 596 Stetson Law Review [Vol. 46 was highly critical of the Mayor, other commissioners, and City staff.39 The comments became so inflammatory a kill switch was installed in the Commission chamber microphone used during public comment, but after outcry about that practice, it was quickly discontinued.40 This same citizen filed multiple complaints with the Florida Commission on Ethics based upon the Mayor’s votes in 2007, 2008, and 2010 to approve the City of Tallahassee’s participation in the Federal Broadband Technology Opportunity Program in partnership with the ADE, and his votes on matters that inured to the gain of a company that was a client of his law firm.41 The Florida Commission on Ethics ultimately exonerated Mayor Marks on all complaints.42 However, on September 19, 2012, in spite of the Mayor’s exoneration and amid additional criticism from members of the public, “the City Commission authorized the creation of a citizen’s Ethics Advisory Panel to ‘examine the existing policies, procedures and practices relating to ethics, financial disclosure and transparency’ of the City of Tallahassee and where appropriate to make recommendations for improvements.”43 “On November 7, 2012, drawing from a pool of interested citizens who were willing to serve, the City Commission appointed a nine member Panel.”44 It was asked to prepare and submit a report to the City Commission by April 1, 2013.45 III. PANEL MEETINGS AND FINDINGS The Ethics Advisory Panel (“Panel”) conducted its first meeting on November 8, 2012.46 The Panel then held eighteen 39. Isbell, supra note 32. 40. Rossman, supra note 38. 41. See Final Order at background, disposition, In re John Marks (Jan. 25, 2013) (No. 13-004), http://www.ethics.state.fl.us/Documents/Orders/2011/11-053fo.html (explaining how it was alleged that “Respondent voted to approve the City of Tallahassee’s participation in the Federal Broadband Technology Opportunity Program in partnership with the Alliance for Digital Equality, a business entity for which the Respondent served in a compensated position, and that he voted on matters which inured to the gain of Honeywell, a principal by which the Respondent was retained”). 42. Id. 43. Ethics Advisory Panel, Report of Recommendations, CITY OF TALLAHASSEE (July 10, 2013), available at https://www.talgov.com/uploads/public/documents/treasurer/pdf/ eap/eap-final-report.pdf [hereinafter 2013 Report of Recommendations]. 44. Id. 45. Id. at 9. 46. Id. at Exhibit A. Page 69 2017] One City's Story of Ethics Reform 597 meetings in eight months, including two public hearings.47 The first public hearing allowed citizens to suggest a direction for the Panel.48 During this first public hearing, a citizen proposed establishing a local city ethics commission, with members appointed by various community organizations.49 “The Panel discussed whether there was a need for an independent body to respond to ethics complaints.”50 The Panel did not ultimately recommend a city ethics commission.51 The second public hearing was to gauge public reaction to the Panel’s proposals before the recommendations were finalized. The Panel’s stated Mission was to review matters of ethics in view of best practices as they affect Elected Officials and City staff. The purpose of this review is to evaluate existing City policies and procedures, seeking to ensure that policies are adequate to serve their purpose, understood by those who are to abide by them, and accessible to the public. The Panel will recommend improvements to the City Commission for consideration and action addressing, but not limited to, a Code of Ethics, financial disclosure, and transparency.52 The Chair and board members commented that the actions of the Panel were not in any way related to allegations against the Mayor, and the Panel instead focused on improving an already- strong ethical foundation and culture within the City government.53 The Ethics Advisory Panel Chair, Martha W. Barnett, ultimately thanked the City Commission “for its foresight in making ethics a continuing priority for the City of Tallahassee. The Panel had the luxury of addressing these issues during a period of stability, unlike some local governments that have had to act in a time of crisis.”54 47. Id. at 4. 48. Id. 49. Id. at 9. 50. Id. 51. Id. at 10. 52. Id. at title page. 53. City Ethics Board, Special Meeting Minutes, CITY OF TALLAHASSEE (Nov. 20, 2013), available at http://www.talgov.com/Uploads/Public/Documents/ethics/131120.pdf [hereinafter Nov. 20, 2013 Special Meeting]. 54. 2013 Report of Recommendations, supra note 43, at 2. Page 70 598 Stetson Law Review [Vol. 46 The Report examined the City’s Code of Ethics, oversight, training, complaint reporting procedures, financial disclosures, voting conflicts, procurement policy, lobbyist registration, campaign finance, and revolving doors. The Panel reviewed numerous documents55 and heard from numerous speakers.56 The key preliminary recommendations of the Ethics Advisory Panel included: ● Rename and promote an existing hotline as an Ethics and Fraud Hotline to make it easy for citizens and employees to share potential concerns[;]57 ● Establish a “one-stop shop” of ethics information on the City’s website to promote additional transparency and easy access to information[;]58 ● Maintain the existing financial disclosure requirements for employees, appointed officials and advisory boards[;]59 ● Identify a way for elected leaders to disclose additional information beyond State-mandated disclosure, such as membership on boards, land ownership,60 and business relationships with current or prospective City vendors or employees[;]61 ● Eliminate awarding points to vendors in the bid process for making charitable contributions[;]62 ● Strengthen the City’s lobbyist registration ordinance, including fines and penalties for noncompliance[;]63 ● Adopt an ordinance similar to (or with reference to) State law, but which requires Elected Officials to abstain from voting if, under a duty of ‘reasonable inquiry,’ the Official knew or should likely have known that the measure would inure to his or her special private gain or loss[; and]64 55. Id. at Exhibit B. 56. Speakers included the City Attorney; the City Manager; the Executive Director of Integrity Florida; the City Auditor; Mr. Talbot “Sandy” D’Alemberte, President Emeritus of Florida State University; and Mr. Phil Claypool, former Executive Director of the Florida Commission on Ethics. Id. at Exhibit A. 57. Ethics Panel Seeks Citizen Comments, CITY OF TALLAHASSEE (May 24, 2013) (on file with Stetson Law Review). 58. Id. 59. Id. 60. “It is not uncommon for allegations of conflicts to arise where a board member or other public official lives in close proximity to the parcel or area subject to review or action.” Salkin, supra note 14, at 765. 61. Ethics Panel Seeks Citizen Comments, supra note 57. 62. Id. 63. Id. 64. 2013 Report of Recommendations, supra note 43, at 13. More specifically, once an elected official declares a conflict under the above requirement, the official shall not Page 71 2017] One City's Story of Ethics Reform 599 ● Prohibit elected and appointed officials from appearing before the City Commission as a paid employee or representative for two years after their term ends.65 All recommendations of the Panel were accepted unanimously, with the exception of the oversight authority.66 The majority of the Panel members agreed, after reviewing emerging best practices from other progressive communities, the trend was the creation of an ethics officer.67 However, some members believed an ethics officer should be an appointed official, while others felt this officer needed to report to an individual or individuals other than the City Commission.68 Some Panel members noted that any ethics officer could not be totally independent because the ethics officer would be a City employee.69 However, the Chair pointed out that the Ethics Officer’s independence would stem largely from transparency and public involvement, and the public’s knowledge of what was occurring within the government.70 It was envisioned that the Ethics Officer could serve as an advisor to the elected officials regarding ethical issues, augment the advice officials currently received from the City Attorney, provide advice to employees, establish standards, create a collection of case studies or examples for training purposes, function as ombudsman to the community, monitor the fraud/abuse hotline, provide whistleblower protection, and conduct an annual ethics assessment.71 The Panel was unanimous in its vote to establish engage in discussion about the measure and leave the chambers until the item is concluded. They would also continue to follow the statutory requirement that an elected official with a voting conflict on the day of the vote must abstain from voting. It was also suggested that a requirement that an elected official must declare a voting conflict and abstain from voting due to a business relationship which existed at any time when said relationship personally involved the elected official and specifically involved the item under consideration. If there is no special private gain or loss and the elected official was not personally involved in the item under consideration, but the official had a past business relationship with a person or company identified in an agenda item within the past three years, the elected official may participate and vote, but the relationship shall be disclosed at the time the measure is presented and prior to any vote being cast. Id. 65. Ethics Panel Seeks Citizen Comments, supra note 57. 66. 2013 Report of Recommendations, supra note 43, at 4. 67. Id. at 8–9. 68. Id. 69. Id. at 4–5. 70. Ethics Advisory Panel, Regular Meeting Minutes, CITY OF TALLAHASSEE 8 (Apr. 18, 2013), http://www.talgov.com/Uploads/Public/Documents/ethics/130418.pdf. 71. Id. Page 72 600 Stetson Law Review [Vol. 46 an ethics officer and stressed that it was up to the will of the City Commission to determine the specifics of the position.72 Many citizens appearing at meetings wanted an independent ethics officer reporting to a board.73 However, the Panel did not recommend an independent board.74 “The Panel officially adopted this Report and Recommendations to the City Commission on June 26, 2013.”75 IV. COMMISSION ACTION The City Commission accepted the final Panel report on July 10, 2013. Subsequently, two separate City Commission workshops were held. The first workshop occurred on November 20, 2013, and over half of the Panel’s recommendations were approved and adopted. However, at the outset, Mayor Marks indicated that the Panel’s process was “‘a solution in search of a problem,’” and that none of the allegations against him were substantiated.76 In contrast, another Commissioner indicated that the Panel’s purpose was the pursuit of the best local government operation possible, and not aimed at any particular individual.77 The City Commission unanimously accepted the recommendation to adopt a formal, centralized, and comprehensive Code of Ethics that is easily accessible to citizens and includes reference to state law, city code, and policy provisions. They also agreed to incorporate a preamble, which states: 72. Id. at 5. 73. Ethics Advisory Panel, Town Hall Meeting Minutes, CITY OF TALLAHASSEE (Jan. 10, 2013), http://www.talgov.com/uploads/public/documents/treasurer/pdf/eap/130110-eap- min.pdf. 74. 2013 Report of Recommendations, supra note 43, at 4. 75. Id. 76. Nov. 20, 2013 Special Meeting, supra note 53, at 7. Mayor Marks was not alone in his assessment. Member of the Ethics Advisory Panel and pastor of First Presbyterian Church in Tallahassee, Brant Copeland, later said that the Panel was “impressed with the ethics in city government, by the amount of training in ethics, by the level of ethics found throughout city government . . . . [They] found no smoking gun. There was no ethics problem in city government.” Gerald Ensley, Ethics Proposal is Wrong and Unnecessary, TALLAHASSEE DEMOCRAT (Oct. 24, 2014, 12:30 PM ET), http://www.tallahassee.com/story/ opinion/columnists/ensley/2014/10/24/gerald-ensley-ethics-proposal-wrong-unnecessary/ 17833971/ (internal quotation marks omitted). 77. Nov. 20, 2013 Special Meeting, supra note 53, at 19. Page 73 2017] One City's Story of Ethics Reform 601 Whereas the citizens of Tallahassee have determined that they will be best served by adopting a municipal form of local government; and whereas the citizens have vested in the public officials and employees of that municipal government the responsibility and trust for operating that government for the benefit of its citizens; and whereas those citizens are entitled to a government that is open, ethical, responsive and accountable to the highest degree possible; now, therefore, the following ethics code is adopted[.]78 The Commission also unanimously agreed to require all officials and employees to swear an Oath of Office, as follows: I, ________, a citizen of the State of Florida and of the United States of America, and being employed by or an officer of and a recipient of public funds as such employee or officer, do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida.79 I further solemnly swear or affirm that I have a commitment to the public trust, the highest standards of professionalism and ethics including a commitment to the constant appearance of propriety, always putting public trust first and never allowing personal benefit to affect my decisions and service as a public servant.80 Other recommendations unanimously adopted included: ● Crea[tion of] a handbook to help citizens and employees understand the City’s Code of Ethics . . . [;]81 ● Expan[sion of] the . . . Fraud Hotline to include Ethics . . . [;]82 ● Repeal [of] the Charitable Contribution preference points program in relation to the competitive bidding process[;]83 ● Inclu[sion] of standardized “boilerplate” language in City contracts to put vendors on notice that they must adhere to the City’s ethics policies[;]84 78. Id. at 5. 79. FLA. STAT. § 876.05(1) (2016). 80. Nov. 20, 2013 Special Meeting, supra note 53, at 5. 81. Id. (emphasis added). 82. Id. 83. Id. at 6. 84. Id. Page 74 602 Stetson Law Review [Vol. 46 ● Prohibit[ion of] future Appointed Officials (in addition to Elected Officials) from appearing before the City Commission for compensation for a [two]-year period after the official leaves the employ of the City;85 ● [Expansion of requirement to disclose job offers extended by City vendors to Elected Officials as well as for Appointed Officials and selected City employees;]86 ● Require the Elected Officials to participate in an initial comprehensive ethics training course within [sixty] days of taking office, with refresher ethics training conducted on an annual basis and documentation of attendance and completion of all courses in the Official’s personnel file[;]87 ● Incorporate training on the Voting Conflicts and the “reasonable inquiry” expectation into the Ethics Training Program for Elected Officials[;]88 ● Provide training to Elected Officials and their Aides relative to the Florida gift ban law and gift reporting requirements[;]89 ● Incorporate training on Florida election laws relating to campaign contributions, prohibitions on campaigning while performing official duties, and prohibitions on collecting campaign contributions within government buildings[;]90 ● Continue with the current practice and expand and enhance the recruitment, selection, initial orientation, appointment, and promotional procedures and processes to ensure that only the most ethical individuals are employed, appointed, and/or promoted items.91 Items requiring further Commission discussion related to the role and reporting structure for the Ethics Official, enhanced disclosure for elected officials, reasonable inquiry prior to voting, City lobbyist reporting requirements, adopting fines for violations, and evaluation of ethics training.92 The second workshop was held on March 12, 2014, when these additional provisions were discussed.93 The Commission 85. Id. 86. Id. 87. Id. 88. Id. 89. Id. 90. Id. 91. Id. 92. Id. at 6, 15, 19. 93. City Ethics Board, Special Meeting Minutes, CITY OF TALLAHASSEE 2, 5 (Mar. 12, 2014), available at http://www.talgov.com/Uploads/Public/Documents/ethics/140312.pdf [hereinafter Mar. 12, 2014 Minutes]. Page 75 2017] One City's Story of Ethics Reform 603 discussed how the Ethics Officer would take office––either (1) the Ethics Officer would be an appointed official, or (2) the Ethics Officer would be jointly interviewed and hired by the City Auditor and City Attorney, and housed in the City Auditor’s Office.94 Ultimately, the Commission decided that the Ethics Officer would jointly report to the City Auditor and City Attorney. The Commission then voted to adopt recommendations to create an appointed five-member Citizens’ Advisory Committee on Ethics to monitor the implementation of the Panel’s recommendations and to present a report to the City Commission after one year.95 Next, the Commission took note of the Ethics Code provision in section 112.3143(3)(a), Florida Statutes, which states that: No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained . . . .96 The Commission then adopted an ordinance “which requires Elected Officials to abstain from voting if, under a duty of ‘reasonable inquiry,’ the Official knew or should likely have known that the measure would inure to his or her special private gain or loss.”97 Once a conflict is declared, the Official “shall not engage in discussion about the measure, and must leave the chambers until the item is concluded.”98 Whereas state ethics law only examines the day a particular vote was cast to determine if a conflict existed on that particular day, the Commission accepted the Panel’s recommendation requiring that officials exercise due diligence and make additional disclosures.99 Further, the Commission mandated lobbyist registration and enacted requirements for lobbyists to disclose clients.100 A process 94. Nov. 20, 2013 Special Meeting, supra note 53, at 21. 95. Id. at 8–9. 96. FLA. STAT. § 112.3143(3)(a) (2016). 97. Mar. 12, 2014 Minutes, supra note 93, at 3. 98. 2013 Report of Recommendations, supra note 43, at 5. 99. Id. at 15–16. 100. Id. at 14. Page 76 604 Stetson Law Review [Vol. 46 was also put in place for barring lobbyists and fining noncompliant lobbyists.101 The Commission also adopted enhanced disclosure for elected officials, including business relationships with City vendors, business relationships with City employees, membership on corporate boards, membership on not- for-profit boards, and any land ownership.102 The Commission then passed a comprehensive ethics ordinance reflective of those votes.103 The City widely advertised to fill the position of Ethics Officer, who would report to the City Auditor and City Attorney— over 150 applicants applied.104 I was jointly interviewed by the City Auditor and City Attorney. The second-round interview was with the City Auditor and City Attorney, joined by the City Manager and Treasurer Clerk. I started working on October 1, 2014.105 However, these actions were unsatisfactory to some community members. Many had wanted the Ethics Officer to be an appointed official, while others wanted an Independent Ethics Officer reporting to a Board.106 This dissatisfaction led to further citizen action. V. CITIZEN ACTION An amendment to the City Charter was presented and promoted by Citizens for Ethics Reform and a national organization, Represent Us.107 The Referendum’s purpose was to 101. Id. at 15. 102. Id. at 5; see also City of Tallahassee, Financial Disclosure For Elected Officials (FORM EB1), (June 2015), available at http://www.talgov.com/uploads/public/documents/ treasurer/pdf/ethics/eb-financial-disclosure-elected-officials.pdf. 103. CITY OF TALLAHASSEE, FLA., ORDINANCE NO. 14-0-44AA (Sept. 22, 2014). 104. Jeff Burlew, City Ethics Post Attracts 150-Plus Applicants, TALLAHASSEE DEMOCRAT (Sept. 13, 2014, 11:39 AM ET), http://www.tallahassee.com/story/news/politics/ 2014/09/13/tallahassee-searches-ethics-officer/15578639/; see also Job Description: Ethics Officer, City of Tallahassee, available at http://www.talgov.com/Uploads/Public/ Documents/hr/hr/specs/791.pdf (last updated Oct. 1, 2015) (describing the functions, duties, and qualifications necessary to become the Ethics Officer). 105. TaMaryn Waters, Julie Meadows-Keefe Hired as New Ethics Officer, TALLAHASSEE DEMOCRAT (Sept. 30, 2014, 11:34 PM ET), http://www.tallahassee.com/story/news/local/ 2014/09/30/julie-meadows-keefe-hired-new-ethics-officer/16516757/. 106. See Jeff Burlew, Ethics Board Facing Criticism from Amendment Backers, TALLAHASSEE DEMOCRAT (July 25, 2015, 1:26 PM ET), http://www.tallahassee.com/story/ news/politics/2015/07/24/ethics-board-facing-criticism-amendment-backers/30628291/. 107. Sam Shanky, Anti-corruption Movement Scores Major Victories at the Polls, BULLETIN.REPRESENT.US (Nov. 5 2014), http://bulletin.represent.us/anti-corruption- movement-scores-major-victory-polls/. Page 77 2017] One City's Story of Ethics Reform 605 amend the City Charter on ethics and campaign finance matters, including a provision for partial public funding of elections.108 The Charter Amendment Referendum read as follows: Shall the Charter of the City of Tallahassee be amended to establish an ethics and anti-corruption policy; require the enactment of an ethics code, establishment of an independent ethics board with broad powers, creation of an ethics office and officer; limit campaign contributions to City Commissioners to $250 per contributor per election and establish a citizen campaign finance program with refunds from city funds for contributions and provide for severability.109 The Charter Amendment required: ● “Enact[ment of] an ethics . . . code with jurisdiction over the officers and employees of the City of Tallahassee, whether elected or appointed, paid or unpaid, and over the members, officers and employees of any boards, commissions, or committees thereof. The ethics code may, as allowed by law, supplement state ethics laws”;110 ● Creation of an ethics Board with appointments by “the City Commission, the Chief Judge for the Second Judicial Circuit, the State Attorney for the Second Judicial Circuit, the President of Florida State University and the President of Florida A&M University. Two Board members shall be appointed by the Ethics Board.”111 The Board would, in part, make recommendations to the City Commission on various matters, including proposed ethics ordinances and employ an Ethics Officer;112 ● “[E]stablishment of a citywide Ethics Office . . . reporting to the independent Ethics Board” with sufficient City Commission funding to function “at a level sufficient to discharge the Office’s responsibilities”;113 108. Referendum Amending City of Tallahassee Charter, available at https://www.talgov.com/Uploads/Public/Documents/ethics/pdf/referendum_150210.pdf (last visited Apr. 18, 2017) [hereinafter Referendum]. 109. Id. 110. Id. at Section 2a. 111. Id. at Section 2b. 112. Id. 113. Id. at Section 3. Page 78 606 Stetson Law Review [Vol. 46 ● Reduction of “campaign contributions from any contributor, including a political committee . . . [to] $250”;114 and ● Establishment of a Campaign contribution refund program to refund city electors a maximum of $25 for contributions to city candidates.115 Some believed that the ethics proposal was going too far.116 The most significant bone of contention was the proposal to establish the campaign contribution refund program. The local organizers of the initiative, Citizens for Ethics Reform, partnered with United Republic and Represent Us, two Massachusetts- based organizations committed to undoing Citizens United and instituting campaign finance reform.117 United Republic contributed over $120,000 to assist with signature collection.118 Nine thousand signatures were required to place the measure on the ballot. Citizens for Ethics Reform, through a petition drive, was able to collect more than twenty thousand signatures.119 However, the City believed that the ballot title and summary did not fairly inform voters of its chief purpose and was misleading. Of particular concern was that the proposal for the $25 campaign contribution rebate program did not fit within the single subject of ethics reform.120 The City challenge made it uncertain whether the measure would make the September 5, 2014, deadline for placement on the ballot. An expedited hearing was conducted, and the Circuit Judge decided that the measure 114. Id. at Section 4. 115. Ensley, supra note 76. 116. Id. 117. Id. See Represent Us, The Truth About Citizens United, REPRESENT US, https://act.represent.us/sign/Citizens-United/ (last visited Apr. 18, 2017) (describing Represent Us’ commitment to overruling Citizens United and ending political corruption on a broad scale). 118. Jeff Burlew, City Ethics Amendment Passes by Wide Margin, TALLAHASSEE DEMOCRAT (Nov. 5, 2014, 8:12 AM ET), http://www.tallahassee.com/story/news/politics/ 2014/11/04/voters-decide-city-ethics-proposal/18459015/. 119. Jeff Burlew, Ethics Proposal Gets Enough Signatures for Ballot, TALLAHASSEE DEMOCRAT (Aug. 5, 2014, 2:47 PM ET), http://www.tallahassee.com/story/news/local/2014/ 08/05/ethics-proposal-gets-enough-signatures-for-ballot/13625497/. 120. TaMaryn Waters, Ethics Initiative Proponents Seek Quick Resolution to City Challenge, TALLAHASSEE DEMOCRAT (Aug. 20, 2014, 10:11 PM ET), http://www .tallahassee.com/story/news/politics/2014/08/20/ethics-initiative-proponents-seek-quick- resolution-to-city-challenge/14370451/. Page 79 2017] One City's Story of Ethics Reform 607 should be placed on the ballot because the language was not confusing, deceptive, inflammatory, or misleading.121 The Commission decided not to instruct the City Attorney to appeal the ruling so that the measure could go before voters.122 The Charter Amendment passed on November 4, 2014, with sixty-seven percent of the vote. Represent Us touted the victory in a marketing video designed to instruct and motivate other communities to enact similar measures.123 VI. A NEW BOARD IS FORMED The Charter amendment requires that the City of Tallahassee’s Independent Ethics Board consist of the following appointees: ● One appointed by the City Commission; ● One appointed by the State Attorney; ● One appointed by Florida State University; ● One appointed by Florida A&M University; ● Two board-appointed members; and ● One member Appointed by Chief Judge (unfilled).124 121. Jeff Burlew, City Charter Amendments Will Go on November Ballots, TALLAHASSEE DEMOCRAT (Aug. 29, 2014, 11:13 PM ET), http://www.tallahassee.com/story/ news/politics/2014/08/29/city-charter-amendment-will-go-november-ballots/14839761/. 122. Id. 123. First Anti-Corruption Act in US History Passes 1:13–3:30 (Represent Us video Nov. 6, 2014), https://www.youtube.com/watch?v=LhEFehRWApM. 124. Members of the first full board included City appointee, Lila Jaber, who served as first Chair; FAMU appointee, Funmi Ojetayo; FSU appointee, Richard Herring; State Attorney appointee, Cecil Davis, Jr.; Thomas J. Friedman, at-large; and Renee McNeil, at- large. Jeff Burlew, City Ethics Board Meets for First Time, TALLAHASSEE DEMOCRAT (Feb. 10, 2015, 4:49 PM ET), http://www.tallahassee.com/story/news/2015/02/10/city-ethics- board-meets-for-first-time/23181609/. Chief Judge Francis declined to make an appointment after reviewing Florida Supreme Court Judicial Ethics Advisory Committee Opinion 2009-14. See Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD 2 (Mar. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics- board-agenda-150312.pdf (showing an email from Lew Shelley to Jim Cooke); see also Florida Judicial Ethics Advisory Committee, Formal Op. 2009-14 (Aug. 31, 2009), available at http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/ 2009-14.html. The Board wrote to the Chief Judge succeeding Judge Francis, Judge Sjostrom, asking if he would be willing to make an appointment. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE 9 (Aug. 20, 2015) available at http://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150820 .pdf [hereinafter Aug. 20, 2015 Minutes]. However, he declined. Letter from Johnathan Sjostrom to Lila Jaber, Ethics Board Appointment (Sep. 3, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-skm-150916.pdf. The Board will most likely not ask again based on the legal opinion from Board counsel. Letter from Page 80 608 Stetson Law Review [Vol. 46 The first meeting occurred on February 10, 2015, with the City Commission, Florida State University, Florida A&M University, and the State Attorney’s Office appointees.125 Both Chief Circuit Judges that have presided during the Board’s existence have declined to make appointments based on a Florida Supreme Court Judicial Ethics Advisory Committee opinion.126 The Board received various briefings and instructed the City’s assistance in securing two additional members.127 At their second meeting on March 12, 2015, those members appointed two additional citizen members drawn from a pool of qualified applicants.128 The first full board meeting occurred on March 23, 2015,129 and the Chair and Vice Chair were elected.130 At the first several meetings, it was necessary for City staff to be present and Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent Ethics Bd., Re: Tallahassee Ethics Opinion 2015-3 (Sept. 24, 2015), http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-addmem-151014.pdf. See also Sean Rossman, Ethics Board Completes Year of Building: Panel Labored Over Authority, Bylaws, Complaints, Penalties, TALLAHASSEE DEMOCRAT, Jan. 20, 2016, 1A. Board members file form 1 and form 9 if gifts are received. See City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 2 (Feb. 10, 2015), available at https://www.talgov.com/uploads/public/ documents/ethics/pdf/ethics-board-minutes-150210.pdf [hereinafter Feb. 10, 2015 Minutes]. Currently, Richard Herring serves as Chair and Ms. Sunny Phillips has replaced Ms. Jaber as the City Commission appointee. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 1, 4 (Jan. 19, 2016), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-minutes-160119 .pdf [hereinafter Jan. 19, 2016 Minutes]. 125. Burlew, supra note 124; see also February 10, 2015 Minutes, supra note 124, at 1 (“The City of Tallahassee Ethics Board held its first regular session on February 10, 2015 in the City Hall Commission Chambers. Present were Board members Davis, Jaber, Herring, and Ojetayo.”). 126. Supra note 124; see also Florida Judicial Ethics Advisory Committee, supra note 124, at 2 (“For the foregoing reasons, this Committee recommends that the chief judge respectfully decline to appoint members of the Board of Ethics.”). See also Rossman, supra note 124, at 1A, 6A. 127. See February 10, 2015 Minutes, supra note 124, at 1 (noting that the Board requested the Treasurer-Clerk to solicit applications for the remaining seats on the Board). 128. See City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 1 (Mar. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ ethics/pdf/ethics-board-minutes-150312.pdf (noting that applicant qualification consists of being a registered City Tallahassee elector, with appropriate subject matter expertise, none of whom may be an officer or employee of local government); Referendum, supra note 108, at Section 2b (“There is hereby created an independent, appointed, ongoing citizens Ethics Board of seven members, whose membership shall consist of registered City of Tallahassee electors who have appropriate subject matter expertise none of whom may be an officer or employee of local government.”). 129. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 1 (March 23, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150323.pdf. 130. Id. Page 81 2017] One City's Story of Ethics Reform 609 to assist the board in becoming established, staffed, supported, and functional;131 however, the public clamored for the Board to quickly demonstrate independence.132 As each meeting occurred, City staff became less visible. Currently, staff is invited to meetings to provide education to Board members about various City functions, and they may choose to attend because the meetings are public.133 One of the Board’s first tasks was to adopt a mission statement, which states: “To promote the actual and perceived integrity of our city government and to prevent unethical conduct before it occurs.”134 The mission statement recognized that the overall aim of the Ethics Board was to improve both the perception and reality of integrity in local government and to encourage public participation.135 Another urgent task for the Board was to establish an operational budget.136 The Charter Amendment requires that the City “shall be funded by the City Commission within its discretionary budgetary authority at a level sufficient to discharge the Board’s responsibilities.”137 131. See Feb. 10, 2015 Minutes, supra note 124, at 2. 132. Rossman, supra note 124, at 6A (noting that at the first Board meeting, City Attorney Lew Shelley advised the board that they were independent and that they should “feel free at any point in time, if it’s the will of the majority, to ignore what any of us say”). 133. See, e.g., Procurement Overview: Department of Management and Administration, CITY OF TALLAHASSEE, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151112-11d-presentation.pdf (last visited Apr. 18, 2017) (providing a presentation on “Procurement Overview”). 134. Independent Ethics Board, Bylaws of the City of Tallahassee 1 (Jan. 19, 2016), http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-bylaws-ethics- board-proposed-technical-amends.pdf. Indeed, there is additional support for the proposition that the purpose of any ethics board is to promote the reality and the perception of integrity in government. See Governmental Ethics Laws, supra note 14, at 186 (“[E]nforcement actions and fines are not an ethics commission’s successes; they are its failures.”). 135. Governmental Ethics Laws, supra note 14, at 119. 136. See, e.g., Funds Available FY15, CITY OF TALLAHASSEE ETHICS OFFICE (Feb. 28, 2015), http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-budget- 150219.pdf (delineating the various expenses and budget considerations the board has encountered during 2015). 137. Referendum, supra note 108, at Section 2b. See also Feb. 10, 2015 Minutes, supra note 124, at 2–3 (discussing how the allocation of certain costs is contingent upon the Board’s decision to hire employees or independent contractors); Updated Budget, CITY OF TALLAHASSEE ETHICS BOARD (Mar. 31, 2015), http://www.talgov.com/uploads/public/ documents/treasurer/pdf/ethics/ethics-board-budget16.pdf (outlining projected expenses for the 2016 fiscal year). Furthermore, it became necessary to ask the City Commission for a supplemental appropriation for fiscal year 2016. Supplemental Appropriation for Independent Ethics Board, CITY OF TALLAHASSEE INDEPENDENT ETHICS OFFICE (Feb. 24, 2016), http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-draft-cc- suplmt-appr-req-011416.pdf; see also Jan. 19, 2016 Minutes, supra note 124, at 3–4 Page 82 610 Stetson Law Review [Vol. 46 Further, the Charter Amendment requires the Independent Ethics Board to undertake the following tasks: ● Review and develop a City Ethics Code;138 ● Adopt bylaws and due process procedures;139 ● Manage existing ethics and fraud hotline;140 ● Manage and coordinate training;141 ● Recommend resolutions, ordinances, or charter amendments;142 ● Investigate complaints and levy civil penalties;143 ● Employ staff and supervises the ethics officer;144 ● Administer campaign contribution refund program;145 ● Ensure independence and impartiality;146 and ● Provide for the maximum practicable input from citizens and community organizations.147 The Board’s attention to these tasks will now be examined in a bit more detail. Functions that are similar will be grouped together. (noting that the Board unanimously agreed to request a supplemental appropriation from the City Commission covering various expenditures such as startup costs and legal fees). Annual costs for the Board were initially approximately $137,000 annually. A budget request for approximately $344,000 has been submitted for FY 2017–2018. The increase is largely due to having to retain outside counsel and to budget for investigators and court reporters that the Board may or may not need depending on the number of complaints received. 138. Referendum, supra note 108, at Section 2a. 139. Id. at Section 2b. 140. Id. 141. The Ethics Officer trained the City Commission and executive team in January 2015 and January 2016, partially based upon the requirement in section 112.3142(2)(b). See Mark Davies, Enacting a Local Ethics Law–Part III: Administration, 22 MUN. LAW. 11, 12 (2008) (“[O]ne municipal ethics ordinance subjects high-level officials to a $500 fine if, within 120 days of assuming their position and every four years thereafter, they fail to attend an ethics education seminar offered by the ethics board.”). 142. Referendum, supra note 108, at Section 2b. 143. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD (Nov. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-151215-Minutes.111215.pdf [hereinafter Nov. 12, 2015 Minutes]; Draft of Agenda Item Details, CITY OF TALLAHASSEE ETHICS BOARD (Mar. 23, 2016), http://www.talgov.com/ uploads/public/documents/ethics/pdf/eb-160315-penalties-(2).pdf. 144. Id. 145. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 2–3 (July 13, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150713.pdf [hereinafter July 13, 2015 Minutes]. 146. Referendum, supra note 108, at Section 2b. 147. Id. Page 83 2017] One City's Story of Ethics Reform 611 A. Review and Development of City Ethics Code and Recommendations of Resolutions, Ordinances, and Charter Amendments In 2015, the City passed an Ethics Ordinance in response to the Panel’s report. The Board carefully reviewed and discussed those provisions.148 Subsequently, an ordinance was passed to establish the Independent Ethics Board and set Board terms.149 The Board counsel later made recommendations for revisions to the City Ethics Code, which the Board advanced to the City Commission for passage.150 In May 2016, Board counsel opined that the Charter Amendment does not allow the Board to exercise concurrent jurisdiction with the Florida Commission on Ethics and the Board’s sole jurisdiction is for violations of the City’s Ethics Code.151 This has increased the Board’s sense of urgency to recommend additional provisions for passage by the City Commission. B. Adoption of Bylaws and Due Process Procedures The Board was deliberative as it “slogged” through the adoption of bylaws and procedures such that one reporter described it as “laboring.”152 However, preliminary bylaws and 148. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD (May 21, 2015), available at https://talgov.com/uploads/public/documents/ethics/pdf/ethics- board-minutes-150521.pdf [hereinafter May 21, 2015 Minutes]. 149. TALLAHASSEE, FLA., ORDINANCE § 2-13 (2015). 150. Letter from Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent Ethics Bd., Recommendations to City Commission Regarding Ethics Board 2–3 (Aug. 6, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ eb-recommendations-150820.pdf; see also Memorandum from Julie Meadows-Keefe, Independent Ethics Officer, to Lewis Shelley, City Attorney, Ethics Board Recommendations for Modifications to City Ethics Ordinances (Aug. 17, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-rec-ec-signed-memo-150916 .pdf. 151. May 21, 2015 Minutes, supra note 148. 152. Rossman, supra note 124, at 1A; see also, e.g., City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD (June 4, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150604 .pdf (“After completing a page-by-page review of the proposed bylaws, Ms. Jaber stated that she understood the Board’s concerns, and that she, along with Ethics Officer Meadows-Keefe, would make the requested changes to the proposed bylaws.”); Nov. 12, 2015 Minutes, supra note 143 (“A motion was made by Mr. Herring and seconded by Mr. Ojetayo that the Bylaws be amended as presented.”); Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (April 6, 2015), https://www.talgov.com/Uploads/Public/ Documents/ethics/pdf/apr6-agenda.pdf (stating that there was a “[d]iscussion of draft Bylaws”); May 21, 2015 Minutes, supra note 148 (“City Ethics Officer Meadows-Keefe Page 84 612 Stetson Law Review [Vol. 46 processes were stood up in short order so that the Board had a structure in place for governance.153 Later, when the Board counsel was hired, he was tasked with examining the existing bylaws and making recommendations that were discussed and in most cases adopted.154 A hallmark of this Board is that because it is relatively new, it is a continuous work-in-progress and seeks to consistently improve and adopt the best practices.155 Additionally, due process procedures were examined in 2016 through a Committee process to ensure the fairest process for both the citizens and officials.156 There is also an interest in moving complaints expeditiously through the process. Therefore, the bylaws allow for probable cause committees to process complaints between meetings and for contested matters to be adjudicated at the Department of Administrative Hearings (“DOAH”). C. Management and Coordination of Ethics Training Noting that ethics commissions in other local governments have been criticized for insufficiently training board members,157 Tallahassee’s Independent Ethics Board has first emphasized educating itself.158 The Board receives annual ethics training each April.159 Current Board Chair, Richard Herring, has also instituted “Ethics Moments” at the beginning of each Board meeting, where recent decisions by the Florida Ethics reported that the proposed draft bylaws provided to the Board were patterned after Robert’s Rules of Order . . . .”); Draft Bylaws of the City of Tallahassee Independent Ethics Board, CITY OF TALLAHASSEE ETHICS BOARD, http://www.talgov.com/uploads/public/ documents/treasurer/pdf/ethics/ethics-board-bylaws-draft.pdf (last visited Apr. 18, 2017). 153. See, e.g., May 21, 2015 Minutes, supra note 148, at 1–2 (addressing each article and section of the proposed bylaws and agreeing to establish a hearing process). 154. See Feb. 10, 2015 Minutes, supra note 124, at 1 (discussing City Attorney Shelly’s briefing on the City Commission’s enactment of the Ethics Advisory Panel’s recommendations). 155. See Rossman, supra note 124, at 1A (discussing the Board’s development throughout its first year of existence). 156. May 21, 2015 Minutes, supra note 148, at 2 (discussing the Board’s decision to establish a hearing process). 157. Office of Program Policy Analysis and Government Accountability, Palm Beach County Commission On Ethics Was Created Using Several Best Practices; Some Practices Could Be Enhanced, Report No. 13-10, at 8–9 (Oct. 2013). 158. E.g., Julie Meadows-Keefe, PowerPoint on Government Ethics, CITY OF TALLAHASSEE ETHICS OFFICE (May 21, 2015), available at http://www.talgov.com/uploads/ public/documents/treasurer/pdf/ethics/pp.pdf; see also May 21, 2015 Minutes, supra note 148, at 4 (proposing to obtain the services of independent counsel to advise the Board on various matters). 159. Meadows-Keefe, supra note 158. Page 85 2017] One City's Story of Ethics Reform 613 Commission or relevant items of interest and applicability are brought to the Board and discussed to enhance Board understanding of ethics issues.160 Even before passage of the Charter Amendment, the Ethics Officer’s role was envisioned to be the central point of contact for ethics matters within the City. I provided annual ethics training to the City Commission, staff, and executive management in January 2015161 and January 2016.162 I have also personally provided ethics education to city advisory boards and councils, and provided general staff training. Additionally, from Board inception, outside speakers have come to educate the Board about the Sunshine and Public Meeting Laws, the role of the Florida Commission on Ethics, and the role of the Florida Elections Commission.163 City staff has also regularly made presentations to the Board, so that members may understand such functions as procurement, communications, and City management and organization.164 The Board also reviewed the ethics training provided to all City employees and heard from the staff member who organizes general employee ethics education.165 160. See, e.g., Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (July 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/ $file/Ethics%20Board%20Agenda%20July%202016.pdf (reserving time at the beginning of the meeting for the “Ethics Moment”). 161. See Feb. 10, 2015 Minutes, supra note 124, at 3 (noting that Ms. Meadows-Keefe assumed the responsibility of providing ethics training). 162. Rossman, supra note 124, at 6A. 163. See Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Apr. 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGAP42A1F8/$file/ Agenda.pdf (Hon. Simone Marstiller); Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Nov. 12, 2015), https://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151112-agenda.pdf (Pat Gleason); City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD (Oct. 14, 2015), available at https://www.talgov.com/uploads/ public/documents/ethics/pdf/eb-151112-02-minutes.pdf [hereinafter Oct. 14, 2015 Minutes] (Elections Commission Director); Aug. 20, 2015 Minutes, supra note 124 (Ethics Commission staff). 164. Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Feb. 16, 2016), https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-agenda.pdf. 165. E.g., Ethics for a Modern Workforce, CITY OF TALLAHASSEE DEP’T OF EQUITY & WORKFORCE DEV. 3–4, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 151215-Ethics%20Training%20Presentation.pdf (last visited Apr. 18, 2017); City of Tallahassee, Ethics Meeting December 15, 2015 (YouTube video Dec. 15, 2015), https://www.youtube.com/watch?v=kf0RIIFjcXw&feature=youtu.be. Page 86 614 Stetson Law Review [Vol. 46 D. Management of the Existing Ethics and Fraud Hotline, Investigation of Complaints, and Assessment of Civil Penalties I began staffing the Ethics and Fraud Hotline as of October 1, 2014, and this continues as of this publication.166 All calls to the hotline and inquiries received via email167 or other means are tracked and reported to the Board monthly. There have been approximately seventy-eight calls and inquiries between October 1, 2014, and September 2016.168 Many times, callers have general questions or believe that they have reached someone who can assist them with issues unrelated to City Ethics violations. It enhances community trust in the Board to try to assist those callers in reaching the appropriate venue for resolution of their issues. Once the Board was empaneled, it discussed over several meetings the desired format for complaints. The Florida Ethics Commission requires sworn complaints,169 as do other jurisdictions such as Palm Beach and Jacksonville.170 However, the Tallahassee Board decided to not require sworn complaints, but to make many means available to initiate complaints.171 Much public comment and discussion took place to assure that 166. See Feb. 10, 2015 Minutes, supra note 124, at 3 (stating that Ms. Meadows-Keefe directly receives and responds to calls made to the Ethics and Fraud hotline); see also Ethics Hotline Tracking Spreadsheet, CITY OF TALLAHASSEE ETHICS BOARD, http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-board- tracking.pdf (last visited Apr. 18, 2017) (listing details of complaints made to the Ethics and Fraud Hotline). 167. The Board adopted an easy-to-remember email address for ethics inquiries, ethics@talgov.com. 168. It is likely that some complaints will be deemed invalid. See Johnson, supra note 9, at 758 (explaining that even when there are penalties for making frivolous reports, there will still be some unfounded complaints). 169. See Complaint Form, FLA. COMMISSION ON ETHICS (CE FORM 50—EFF. 4/2008), available at http://www.ethics.state.fl.us/Documents/Forms/Complaint%20Form .PDF?cp=2017412 (last visited Apr. 18, 2017) (requiring that complaints are “sworn before a notary or other official authorized to administer oaths”). 170. See Complaint Form, JACKSONVILLE ETHICS COMMISSION, http://www.coj.net/ departments/boards-and-commissions/docs/ethics-commission/complaint-form-april-2010- ext.aspx (last visited Apr. 18, 2017) (requiring complaint forms to be sworn before a notary or other authorized person); Complaint Form, PALM BEACH COUNTY COMMISSION ON ETHICS, available at http://www.palmbeachcountyethics.com/pdf/Forms/Complaint_Form _and_Instructions.pdf (last visited Apr. 18, 2017) (requiring complaint forms to be sworn and notarized). 171. See Letter from Richard Herring to Members of the Ethics Board, Interim Interaction with the City 1 (March 30, 2015), available at http://www.talgov.com/uploads/ public/documents/treasurer/pdf/ethics/interim_complaint_process.pdf (explaining that filed complaints may be sworn or unsworn, and permitting anonymous complaints). Page 87 2017] One City's Story of Ethics Reform 615 the complaint process would be accessible to all, simple and transparent, easy to obtain and locate, and clearly understandable.172 The form is available online.173 Another distinguishing characteristic is that the Board, unlike the Florida Ethics Commission, can self-initiate complaints and 174 investigations. It has not yet done so. Generally, when a complaint or inquiry is relayed to the ethics office, the Ethics Officer determines whether the accusation would violate state or local ethics codes if it were to be found true. If it would be a violation, he or she turns all investigatory materials over to the Board along with a recommendation. The Board then convenes in a closed meeting to determine whether or not there is probable cause to believe a violation has been committed. No matter the outcome, all documents related to the case are made public following the closed-door meeting. If they do determine probable cause, the Board notifies the alleged violator in writing. That person is entitled to a public hearing in front of the Board––complete with witnesses and testimony––or they could settle. At the end of the hearing, the Board will make a written decision or refer the case to proper authorities. If the person is found in violation of the City’s Ethics Code, the Board may levy civil penalties. The Board also has a process for appropriate referral of matters to other entities inside and outside the City. One example occurred following an unsubstantiated ethics complaint alleging that energy auditors were utilizing their positions to gain clients for their personal heating and air conditioning businesses. Subsequently, after meeting with the concerned citizens, the City Auditor conducted a system-wide audit of the 172. Aug. 20, 2015 Minutes, supra note at 124, at 4–5; see also Complaint Form, INDEPENDENT ETHICS BOARD FOR THE CITY OF TALLAHASSEE COMPLAINT FORM, https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-complaint-form.pdf (last visited Apr. 18, 2017) (providing clear and simple directions to make a complaint and specifically stating that complaints may be anonymous). 173. Complaint Form, supra note 172. 174. Keeping the Faith, supra note 8, at 113; see also Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Lila A. Jaber, Chair, Tallahassee Independent Ethics Bd., Board Initiated Complaints (Nov. 4, 2015), http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-151112-12-initiation-legalopinion.pdf (discussing that it was intended by the legislature that the ethics board be self-regulatory). Page 88 616 Stetson Law Review [Vol. 46 City energy audit program.175 Although there were no findings of ethics violations in the audit, there were recommendations made that served to enhance the controls present in the program to prevent real or perceived conflicts of interest.176 The first complaint that wound its way through the probable cause process was one involving the police chief who had developed a personal relationship with another member of the police department.177 The Board examined the matter to determine if the Chief had misused his position in the course of the relationship. The Board did not believe the conduct rose to that level and closed the complaint. This required the Board go into a “shade” meeting as required by sections 112.324(2)(a), (c), (e), Florida Statutes, which provides in pertinent part: The complaint and records relating to the complaint or to any preliminary investigation held by . . . a Commission on Ethics and Public Trust established by any . . . municipality . . . are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. . . . Any . . . proceeding conducted by . . . a Commission on Ethics and Public Trust, . . . pursuant to a complaint or preliminary investigation, is exempt from [the provisions of] s. 286.011, s. 24(b), Art. I of the State Constitution, and s. 120.525. The exemptions in paragraphs (a)-(d) apply until: 1. The complaint is dismissed as legally insufficient; 2. The alleged violator 175. Memorandum from T. Bert Fletcher, City Auditor, to Mayor and Members of the City Commission, Inquiry into Potential Conflicts of Interest Regarding City Energy Auditors and Their Secondary Employment (Nov. 12, 2015), available at http://www.talgov .com/uploads/public/documents/ethics/pdf/eb-151215-EA.pdf; see also Final Audit Follow up: Inquiry into Potential Conflicts of Interest Regarding City Energy Auditors and Their Secondary Employment (Report #1611), CITY OF TALLAHASSEE 1–2 (Nov. 12, 2015), https://www.talgov.com/Uploads/Public/Documents/auditing/pdf/fy16/1611.pdf [hereinafter Final Audit Follow-Up] (detailing the concerns of the accusations and then outlining the investigation launched as a result of the accusations). 176. Final Audit Follow-Up, supra note 175. 177. See Rossman, supra note 124, at 6A (noting that the complaint about the police chief was the only complaint that rose to the level of triggering the Board to discuss a possible ethics violation); see also Jeff Burlew, Ethics Complaint Dropped Against TPD Chief DeLeo, TALLAHASSEE DEMOCRAT (Oct. 15, 2015, 7:38 AM ET), http://www.tallahassee.com/story/news/2015/10/14/ethics-complaint-dropped-against-tpd- chief-deleo/73944636/ (explaining the background of the complaint and the procedures followed after receiving the complaint); Jeff Burlew, City Ethics Board Taking Up First Complaint, TALLAHASSEE DEMOCRAT (October 13, 2015, 10:15 PM ET), http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first- complaint/73877788/ (issuing that the Board had received its first ethics complaint and describing the procedure through which the Board would respond) [hereinafter Taking Up First Complaint]. Page 89 2017] One City's Story of Ethics Reform 617 requests in writing that such records and proceedings be made public; 3. The commission determines that it will not investigate the referral; or 4. [A] Commission on Ethics and Public Trust . . . determines, based on such investigation, whether probable cause exists to believe that a violation has occurred.178 The Board explained the reasoning for the “shade” session prior to it taking place.179 At the conclusion of the session, all documents pertaining to the investigation and the final order were immediately provided to the public and news reporters. Additionally, after the session, the Board held a public debrief at the following meeting to refine its complaint investigation process.180 The second complaint that required the Board to go into a “shade” session involved the amount and ongoing payment of a retired Commissioner’s deferred compensation.181 Again, a clear explanation was given to the public for the “shade” session.182 The Board found that the complaint was legally insufficient and closed it.183 As in the first complaint, a public debrief was held regarding the complaint and the Board received additional information from City staff regarding how deferred compensation had been calculated for this Commissioner.184 The Board also recommended penalties for ethics violations that were passed by the City Commission in 2016.185 178. FLA. STAT. §§ 112.324(2)(a), (c), (e) (2016). 179. Oct. 14, 2015 Minutes, supra note 163, at 17. 180. Nov. 12, 2015 Minutes, supra note 143, at 6. 181. Jeff Burlew, City Ethics Board Drops Lightsey Complaint, TALLAHASSEE DEMOCRAT (June 21, 2016, 9:29 PM ET), http://www.tallahassee.com/story/news/2016/06/ 21/city-ethics-board-drops-lightsey-complaint/86213840/ (explaining the nature of the complaint and why the Board voted to toss out the complaint). 182. Notice of Executive Session, CITY OF TALLAHASSEE ETHICS BOARD (June 6, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/AAWH57453AFF/$file/Notice%20of%2 0Executive%20Session%20060616.pdf. 183. May 21, 2015 Minutes, supra note 148, at 3. 184. Independent Ethics Board Agenda, CITY COMMISSION CHAMBER 1 (July 19, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/$file/ Ethics%20Board%20Agenda%20July%202016.pdf. 185. “Enforcement mechanisms may include: disciplinary action, liability for damages or injunctive relief, civil fines, perjury prosecution for perjury or other crimes; voiding of a contract; disqualification from contracting with the city; and forfeiture of improper financial benefits.” Johnson, supra note 9, at 759–60 (footnotes omitted); see also ROBERT F. WECHSLER, LOCAL GOVERNMENT ETHICS PROGRAMS: A RESOURCE FOR ETHICS COMMISSION MEMBERS, LOCAL OFFICIALS, ATTORNEYS, JOURNALISTS AND STUDENTS, AND A MANUAL FOR ETHICS REFORM 723–820 (2d ed. 2013) (providing ideas on establishing a Page 90 618 Stetson Law Review [Vol. 46 E. Employment of Staff and Ethics Officer At the Board’s inception, I was the only employee.186 At the third Board meeting, the Board received a report of my activities since commencing the role.187 The Ethics Officer’s job description was also modified to track the new reporting structure for the position and modified responsibilities.188 Throughout the first few Board meetings there was ongoing tension over whether the new Board would re-open a hiring process, do a national search and interview a range of candidates, or decide to allow me to continue to function in the role without going through another hiring process. The concern expressed by critics was whether an ethics officer hired by the City could serve citizens objectively.189 This was the subject of discussion at meetings and by the media.190 However, the Board’s first hiring decision came in the form of retaining outside legal counsel.191 Although I am an attorney and several Board members are attorneys, the consensus of the Board and best practices indicate that an attorney is necessary to represent the Board, whereas the Ethics Officer function is more of an Executive Director role. Soon after the Board counsel was disciplinary policy for violations of ethics rules); Memorandum from Julie Meadows-Keefe, Independent Ethics Officer, to Independent Ethics Board, Penalties for Ethics Violations (Oct. 28, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-151112-10-penalties-memo.pdf (establishing the penalties the Board is authorized to impose for ethics violations); TALLAHASSEE, FLA., DRAFT OF ORDINANCE NO. 16-O-07, (Mar. 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 160315-16-o-07.pdf (codifying the penalties for ethics violations). 186. Feb. 10, 2015 Minutes, supra note 124, at 2. 187. See Report on Ethics Activities, CITY OF TALLAHASSEE ETHICS ADVISORY BOARD (Mar. 19, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/ pdf/ethics/ethics-officer-report.pdf (outlining, by month, the duties performed by Ms. Meadows-Keefe). 188. See Job Description: Ethics Officer, CITY OF TALLAHASSEE, available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-officer- job%20description.pdf (last visited Apr. 18, 2017) (establishing the duties of the ethics officers as well as the knowledge, abilities, skills, and training an ethics officer must possess). 189. Aug. 20, 2015 Minutes, supra note 124. 190. July 13, 2015 Minutes, supra note 145; see also Jeff Burlew, Ethics Board Facing New Round of Criticisms, TALLAHASSEE DEMOCRAT (Sept. 15, 2015, 4:58 PM ET), http://www.tallahassee.com/story/news/politics/2015/09/15/ethics-board-facing-new-round- criticism/72314558/ (citing conflict of interests concerns regarding the Boards’ members). 191. July 13, 2015 Minutes, supra note 145; see also Burlew, supra note 106 (discussing that the Board hired Jerry Currington as outside counsel to advise the Board); May 21, 2015 Minutes, supra note 148, at 3–4 (providing background on the Board’s decision to retain outside counsel, the purpose hiring outside counsel would provide, and the compensation structure for said outside counsel). Page 91 2017] One City's Story of Ethics Reform 619 retained, he opined that the Board could establish its own hiring process, which could include retaining me.192 I was officially hired as the Independent Ethics Officer at a spirited meeting on August 20, 2015.193 I commenced written monthly reporting to the Board in November 2015.194 Currently, these reports include the office’s monthly activities, the budget, the number of complaints received, and, during the election season, a report of the number of contribution requests received.195 There is now one, part-time staff member to provide administrative support to the Ethics Officer and the Board.196 There is also a mechanism to retain investigative services and to hire an advocate to prosecute matters that require a formal hearing.197 F. Administration of Campaign Contribution Refund Program The Charter Amendment included a provision for a Campaign Contribution Refund program.198 The program allows an individual registered as a City of Tallahassee elector to receive a one-time-per-election-cycle refund of up to twenty-five dollars 192. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Lila A. Jaber, Chair, Tallahassee Independent Ethics Bd., Hiring Protocol for Ethics Officers (July 30, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ eb-hire-opinion-150820.pdf. 193. Aug. 20, 2015 Minutes, supra note 124, at 7–10. 194. Nov. 12, 2015 Minutes, supra note 143, at 1. 195. See, e.g., Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Aug. 16, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/ACQKSG5241FF/$file/ Ethics%20Board%20Agenda%20August%202016%20081016.pdf (noting what is included in the Ethics Officer’s report). 196. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 7–8 (Sept. 16, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/ pdf/ethics-board-minutes-150916.pdf [hereinafter Sept. 16, 2015 Minutes]. 197. May 21, 2015 Minutes, supra note 148, at 3. 198. Sean Rossman, Contribution Rebate Program Off to Slow Start, TALLAHASSEE DEMOCRAT (May 11, 2016, 4:42 PM ET), http://www.tallahassee.com/story/news/2016/05/ 11/contribution-rebate-program-off-slow-start/84224062/; see also Refund Program: Tracking Language and Identifying Board Role, CITY OF TALLAHASSEE (Jun. 4, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb- refund-program-150604.pdf [hereinafter “Refund Program PowerPoint”] (summarizing the charter amendment campaign contribution program); Modified Campaign Contribution Refund Process PowerPoint, CITY OF TALLAHASSEE (Feb. 16, 2016), http://www.talgov.com/ uploads/public/documents/ethics/pdf/eb-160216-board-pres-re-modified-process.pdf (explaining the steps to be taken for a donor to complete the campaign contribution refund process). Page 92 620 Stetson Law Review [Vol. 46 donated to a Mayoral or City Commission candidate.199 The Board is charged with administration of the program and the refunds are paid by the City from general revenue.200 Budgeting presented a challenge because the popularity of the program was an unknown. Twenty thousand dollars was allocated for fiscal year 2016.201 The initial process was revised to streamline for both donors and candidates.202 The program has been controversial and not particularly popular, and it has received only eighteen refund requests as of September 9, 2016.203 G. Ensuring Independence and Impartiality There is an inherent strain in the relationship between the Board and the City because the City funds the Board, including the salary of Board staff and provision of space.204 However, many similar boards are funded by the entity over whom they oversee.205 The Board strives to be independent and impartial, providing maximum practicable input from citizens and community organizations in spite of the fact that it is funded by the City Commission. Proponents of the Charter Amendment were consistent in their pressure to see the Board stand up as an 199. Refund Program PowerPoint, supra note 198; see also Jan. 19, 2016 Minutes, supra note 124, at 4 (showing that the City Ethics Board discussed the measure and passed a motion to move forward unanimously). 200. Process PowerPoint, CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb-process-150604 .pdf (last visited Apr. 18, 2017); see also City of Tallahassee Ethics Board Campaign Contribution Refund Application 2016 Election Cycle, CITY OF TALLAHASSEE (Sep. 16, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-cc- refund-app-150916.pdf (identifying the Ethics Board as the recipient of applications for campaign contribution refunds). 201. Budget, CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.boarddocs .com/fla/talgov/Board.nsf/files/A9W38573B89E/$file/Copy%20of%20Ethics%20Working%2 0File%20051016.pdf (last visited Apr. 18, 2017). 202. City of Tallahassee Independent Ethics Board Campaign Contribution Refund Claim Form 2016 Election Cycle, CITY OF TALLAHASSEE, available at http://www.talgov .com/uploads/public/documents/ethics/pdf/eb-160216-ccrefund-pkg-021016.pdf (last visited Apr. 18, 2017). 203. Rossman, supra note 198. 204. Aug. 20, 2015 Minutes, supra note 124, at 7–8. 205. New York’s Conflict of Interest Board has sought for several years to obtain a Charter Amendment to provide it with an independent and protected budget. See Report on the Fiscal Year 2015 Executive Budget for Conflicts of Interests Board, COUNCIL OF THE CITY OF NEW YORK (May 22, 2014), available at http://council.nyc.gov/downloads/pdf/ budget/2015/15/eb/coib.pdf (highlighting a goal to amend the charter to provide the Board with an independent budget to keep the Board looking independent to the public). Page 93 2017] One City's Story of Ethics Reform 621 independent entity to the greatest extent possible.206 Additionally, the Board has demonstrated independence by implementing a process for preparing advisory opinions after the Board counsel opined that this was within Board authority.207 The City expressed disagreement with this opinion.208 Although there have been times when the Board’s independence has been questioned, at the end of 2015, Ben Wilcox of Citizens for Ethics Reform stated that the Board had a “good sense of its independence” and that “we have to celebrate the fact that we now have an ethics board where citizens can bring complaints.”209 H. Provision for Maximum Practicable Input From Citizens and Community Organizations The Board was fortunate that its first chair, Lila Jaber, had served on the Ethics Advisory Panel and had a strong commitment to civic engagement and consensus building. She acknowledged that although civic engagement can be difficult and at times may feel like a personal attack, it was vital to the building process for the Board and the building of public trust.210 The Board imposed no time limits on speakers and would often take public comment throughout the meeting. Citizen suggestions were often incorporated into Board practices and procedures. Specifically, the Board received and incorporated 206. Aug. 20, 2015 Minutes, supra note 124, at 3. 207. See Taking Up First Complaint, supra note 177 (noting that the Ethics Board is in the process of dealing with complaints); see also Keeping the Faith, supra note 8, at 117 (outlining how ethics boards generally offer advisory opinions upon request of municipal employees or officers); Johnson, supra note 9, at 764–65 (opining that cities should have ethics officers and a process for requesting written ethics opinions); Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Richard Herring, Chair, Tallahassee Independent Ethics Bd., Tallahassee Ethics Opinion 2016-1 (Jan 14, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-legal-opinion- 011416.pdf (summarizing that the Ethics Board has the authority to render advisory opinions when requested); Advisory Opinion Flow Chart, CITY OF TALLAHASSEE (Feb. 16, 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216- advisory-opinion-flow-chart-020416.pdf (outlining the process to create an advisory opinion); see also Draft Bylaw: Article XI – Issuance of Advisory Opinions, CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.talgov.com/uploads/public/ documents/ethics/pdf/eb-160315-advisor-opinion-bylaw-draft-3-4-all-edits.pdf (last visited Apr. 18, 2017) (identifying potential authority of the Ethics Board to create an advisory opinion, and outlining the process by which it would be created). 208. Jan. 19, 2016 Minutes, supra note 124, at 2. 209. Rossman, supra note 124, at 1A, 6A. 210. Sep. 16, 2015 Minutes, supra note 196, at 7. Page 94 622 Stetson Law Review [Vol. 46 public input regarding the complaint process.211 Additionally, the Board received consistent input from citizens regarding the mindset of board members.212 Related to this, a member of the public supported by other interested persons proposed a pledge to be executed by Board Members.213 The Board counsel determined that the Charter Amendment language did not allow for a mandatory pledge,214 but that Board members could execute a voluntary document––the Board approved a form for a voluntary pledge in August 2016.215 In September 2015, the Board began broadcasting its meetings on a City TV channel and YouTube.216 The Board also seeks to engage with citizens and community organizations. I have spoken at general meetings of these community organizations, such as the League of Women Voters, the Florida Government Bar Association, and local candidate forums, to educate citizens about the Board and items such as the Campaign Contribution Refund Program. 211. See, e.g., Aug. 20, 2015 Minutes, supra note 124, at 1–2 (outlining a request for anonymous ethics complaints). 212. E.g., Sep. 16, 2015 Minutes, supra note 196, at 5–6. 213. Taking Up First Complaint, supra note 177. Sean Rossman, Ethics Board Approves Self-Initiation, TALLAHASSEE DEMOCRAT (Jan. 20, 2016, 6:43 AM ET), http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first- complaint/73877788/; Oct. 14, 2015 Minutes, supra note 163; Pledge, CITY OF TALLAHASSEE ETHICS OFFICE, http://www.talgov.com/uploads/public/documents/ethics/pdf/ eb-160216-pledge-pkg-021016.pdf (last visited Apr. 18, 2017) (identifying the different pledges for board members, city officials, and others involved with the Ethics Board); City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 5 (Dec. 15, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/eb- 160119-minutes-121515.pdf (requesting that the pledge issue be discussed at the January 2016 meeting). 214. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Richard Herring, Chair, Tallahassee Independent Ethics Bd., Proposed Ethics Board Member Pledge 1 (June 3, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ AAWH4D4509BE/$file/Informal%20Opinion%20re%20Pledge%20060316.pdf. 215. July 19, 2015 Minutes, supra note 124, at 2–3. 216. See Markowitz, supra note 9, at 606 (stating that in order to be successful, “[p]rinciples of representative democracy require policy to be made in the shadow of public accountability”) (footnotes omitted); City of Tallahassee, Ethics Meeting August 16, 2016 (YouTube video Aug. 17, 2016), https://www.youtube.com/watch?v=3k8O2MajJkU (presenting the full ethics meeting that was held on August 16, 2016); City of Tallahassee, COTNews Featuring WCOT, YOUTUBE, https://www.youtube.com/user/WCOT (last visited Apr. 18, 2017) (providing a channel to watch videos posted by the city of Tallahassee). Page 95 2017] One City's Story of Ethics Reform 623 VII. MOVING FORWARD WITH ETHICS REFORM AND TIPS FOR OTHER LOCAL GOVERNMENT ETHICS PROGRAMS. Lila Jaber, who also served as the First Board Chair, resigned in December 2015.217 The Board elected Florida State University’s appointee, Richard Herring, as Chair in 2016.218 The Chair has continued the practice of robust citizen engagement. He also initiated Board committees to look at issues such as Board procedures and due process, budget, city policies and procedures, transparency, and investigatory techniques.219 What lessons can be learned by looking at the City of Tallahassee’s experience that may be applied to a local government seeking to create or enhance a local government program? 1. Initiating a discussion at the local government level about enhancing ethics compliance is not an indictment on anyone. It is instead a best practice to be proactive and think about your program during a time when there is no glaring issue. If you reside in a community where things are quiet on the ethics front, this is the perfect time to look at processes that can ensure it continues. Having to respond to a crisis with rushed ethics reform will not yield the most desirable effect. Even if we believe we only elect good and moral individuals in our communities, human beings cannot always be relied upon to use good judgment. Rules and guidelines serve as guardrails for public officials and employees. People are even willing to forgive government officials from misconduct if those individuals are generally likeable and committed to reforming their behavior.220 217. Jeff Burlew, Jaber Resigning from Ethics Board, TALLAHASSEE DEMOCRAT (Oct. 14, 2015, 10:31 PM ET), http://www.tallahassee.com/story/news/2015/10/14/ethics- complaint-dropped-against-tpd-chief-deleo/73944636/. There were also concerns expressed by some about her law firm’s prior representation of the City. See Rossman, supra note 124, at 1A, 6A (discussing some of the hurdles the Ethics Board overcame during its first year). See also Sept. 16, 2015 Minutes, supra note 196, at 1 (providing statements by Jaber that her firm did not undertake any representation of the City of Tallahassee while she served on the Ethics Board). 218. Jan. 19, 2015 Minutes, supra note 124. 219. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 5 (Feb. 16, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGBX42DC29/ $file/Minutes%20021616.pdf. 220. It can be argued that the main objective of ethics laws is to achieve compliance rather than exact penalties. Page 96 624 Stetson Law Review [Vol. 46 2. Citizens want a system of accountability within local government. When an ethical lapse happens, people are often surprised that their city or county does not have its own, coherent ethics codes that are clearly communicated to officials and staff.221 Localities often presume that state ethics codes are sufficient to address community concerns, only to find out later that the community wants higher standards. Hallmarks of a good local ethics program impart consistency, predictability, and fairness.222 3. When initiating a new ethics program, it can be helpful to get a panel of outside experts, as occurred with Tallahassee’s Ethics Advisory Panel. Those experts should review current state ethics laws, charter documents, existing ordinances or codes and policies, and consider how a program may be enhanced or improved.223 Additionally, experts should obtain buy-in of leadership and encourage citizen engagement that is inclusive of and respectful of critics. Do not reinvent the wheel. Look to other jurisdictions and model codes for help.224 What we need is nonpartisan statesmanship and visionary leadership willing to face up to the fact that relying on the individual judgment of each elected official is a failed strategy that guarantees a continuous flow of scandals that discredits their institutions and even the enterprise of democratic government itself. While I wish more emphasis was placed on character rather than compliance, the raw reality is that voters do not consistently demand scrupulous integrity as evidenced by the re-election of people severely stained by scandal. Michael Josephson, The Peculiar Concept of Ethics Laws, COJ.NET, http://www.coj.net/ departments/ethics-office/docs/the-peculiar-concept-of-ethics-laws.aspx (last visited Apr. 18, 2017). 221. See Johnson, supra note 9, at 725 (finding that few municipalities have a code of ethics to guide their officers and employees). 222. See id. at 726–27 (observing that while the Ethics Code has a limit in being able to cover the ethical conduct for all situations, a well-drafted code can help overcome those limits). 223. See, e.g., Wechsler, supra note 9 (discussing the use of revolving door provisions in cities’ ethics codes); Georgia Municipal Association, Ethics in Government: Charting the Right Course, GMA LEGAL REPORT (July 2010), available at http://gmanet.com/GMASite/ media/PDF/publications/ethics.pdf (providing a sample ethics ordinance and encouraging cities to modify it to fit their specific circumstances). 224. Keeping the Faith, supra note 8, at 61, 66; see also, e.g., Complaint Procedures, CITY OF JACKSONVILLE ETHICS COMMISSION (June 2, 2014), http://www.talgov.com/ uploads/public/documents/treasurer/pdf/ethics/florida-examples.pdf (showcasing examples of programs in Jacksonville and Palm Beach County, Florida). Page 97 2017] One City's Story of Ethics Reform 625 4. Realize that an ethics program costs money.225 Hiring someone on a full- or part-time basis to serve as the single-point- of-contact for ethics matters in a local government is probably the most cost-effective method and is a practical solution for localities where an ethics program has not been a point of concentration or has limited resources. In larger local governments, a community may opt for an Inspector General’s Office. Offices of Inspectors are commonly known as “watchdog” agencies and are found at all levels of local, state, and federal government.226 This becomes a more expensive solution. 5. A local ethics program must have enforcement authority to have credibility.227 Although one hallmark of a successful ethics compliance program is a paucity of enforcement actions,228 there will be some community members who will not be satisfied until someone is led from City Hall or Commission Chambers in handcuffs. There must be tools in place to penalize violators. In summation, it is vital for local governments to set out clear principles to help public officials know their proper boundaries, understand the long term implications of their decisions and conduct, and consider how the public will perceive them. Local ethics laws, officials, and boards are not just an academic or window-dressing exercise. Their purpose is not to require more disclosure forms or prohibit officials’ actions merely for the sake of public perception. Instead, communities grappling with local ethics issues should consider the impact of ethics laws 225. See Governmental Ethics Laws, supra note 14, at 187 (“Training, education, and quick advice to government employees, all of which cost money, mean fewer ethical lapses.”). See also Johnson, supra note 9, at 765 (establishing a robust ethics program at the local level may be costly). 226. Mission Statement, MIAMI-DADE COUNTY: OFFICE OF THE INSPECTOR GENERAL, http://www.miamidadeig.org/whatwedo2.htm (last visited Apr. 18, 2017). 227. Marie Louisa Victor, Enforcement: An Indispensable Component in the Success of Municipal Ethics Boards, 18 MUN. LAW. 4, 6 (2004). This stated as follows: Ethics boards without full and effective enforcement power have often been criticized as toothless tigers—and worse. Such boards raise and then dash hopes of prompt and fair adjudication of ethics complaints and thus only increase the public’s cynicism about the honesty and integrity of our public servants. Therefore, municipalities that adopt new ethics laws should do so only if they are prepared to grant their ethics boards the powers and duties outlined above. Anything less may well reap a whirlwind of censure and derision. Id. 228. Governmental Ethics Laws, supra note 14, at 186. Page 98 626 Stetson Law Review [Vol. 46 on the officials elected to serve their communities.229 Ethics codes should embody service orientation, procedural fairness, and the ethics of democratic responsibility.230 They should be simple for everyone to understand––officials and citizens alike.231 Rules should be easily accessible for everyone and be the result of collaborative efforts with citizens.232 As the first Board Chair, Lila Jaber, noted at the conclusion of her term, “‘Even though [the Board] was hard to create and not always a pleasant experience for the [C]ity, it was an example of citizen engagement making a difference and then seeing the fruit of their effort.’”233 Localities seeking to enhance or establish an ethics program should expect a similar experience. As it was in Athens, so it is today. Difficult things are worth doing well and have lasting value for years to come. 229. Keeping the Faith, supra note 8, at 66. 230. MIAMI-DADE COUNTY: OFFICE OF THE INSPECTOR GENERAL, http://www.miamidadeig.org/ (last visited Apr. 18, 2017). 231. See generally Conflicts of Interest Board, Basis, Structure, and Administration of Conflicts of Interest (Government Ethics) Laws and Annual Financial Disclosure (Asset Declaration) Laws, CITY OF NEW YORK CONFLICTS OF INTEREST BOARD (Mar. 2003), available at http://www.nyc.gov/html/conflicts/downloads/pdf/visitors.pdf (discussing how to make an effective government ethics program that works); see also Governmental Ethics Laws, supra note 14, at 177–80 (“[E]thics regulations must always be written and interpreted in light of reason, common sense, and everyday experience” and drafters should “know their customer[s]. . . . An ethics provision that is good for a state or major city may devastate a small municipality.”). 232. See Governmental Ethics Laws, supra note 14 (finding that easy access to ethics laws is required for their purpose to be achieved). 233. Rossman, supra note 124, at 6A. Page 99 Public Integrity, 18: 269–289, 2016 Copyright © 2016 American Society for Public Administraction ISSN: 1099-9922 print/1558-0989 online DOI: 10.1080/10999922.2016.1139523 Missouri Municipal Ethics Survey: Do Ethics Measures Work at the Municipal Level? Wally Siewert and Adriano Udani University of Missouri This article addresses the marked lack of scholarly work correlating common measures meant to improve ethical performance in local government (ethics codes and training) with actual levels of unethical behavior. Analyzing data from a survey specifically optimized to encourage honest reporting on ethical infractions, and administered to local government officials and employees in Missouri, this study is the first of its kind to adopt Lasthuizen’s typology of governmental ethical infractions. Results suggest that ethics training regimens (but not ethics codes by themselves) are correlated with measurable drops in reported levels of several of the most commonly observed ethical infraction types, though the relationship is more complex than previously reported. A surprising finding is that larger municipalities were subject to higher infraction rates, but were not more likely to implement ethics measures, indicating that these are the lowest-hanging fruit regarding ethics reforms. Further implications are discussed regarding the content and limited impact of ethics training, leading to recommendations for both practitioners and researchers regard- ing the full range of ethics measures. Keywords: ethical infractions, ethics codes, ethics measures, ethics training, local government As a part of a renewed focus on local government ethics in recent decades, a variety of measures to address ethical issues at the municipal level have become widespread. These ethics measures include good-government reforms of various kinds, such as ethics laws, ethics codes, ethics training, and the creation of ethics commissions and complaint processes. In particular, ethics codes and ethics training have become a central feature of local government reform around the country (Berman, West, & Cava, 1994; Feldheim & Wang, 2004; Kaptein & Avelino, 2005). However, with one notable exception, scholars have obtained minimal direct evidence regarding the effect of any of these measures on ethical infraction frequencies in the public sphere aside from a vast wealth of anecdotal stories (Lasthuizen, Huberts, & Heres, 2011; Menzel & Benton, 1991; Van Montfort, Beck, & Twijnstra, 2013; West & Berman, 2004). The one notable excep- tion, not mentioned by any of the above, is the Ethics Resource Center’s (2007) National Government Ethics Survey (NGES). The current paucity of data on this front has not prevented various agencies from making claims about those effects; the website of the Office of the New York State Comptroller claims that ethics training can accomplish a number of things, and at the top of the list is the assertion that it can “reduce the instances of unethical behavior” (http:// www.osc.state.ny.us/localgov/training/modules/protecting/two/train1.htm). Correspondence should be sent to Wally Siewert, Center for Ethics in Public Life, University of Missouri St. Louis, 707 Tower, 1 University Blvd., St. Louis, MO 63121, USA. E-mail: siewertw@umsl.edu Page 100 270 SIEWERT AND UDANI Empirical data regarding actual levels of ethical misbehavior in public agencies can be problematically difficult to develop. Conclusions gained from analyzing public scandals might say much more about levels of transparency and scrutiny than actual violation frequencies. On the other hand, answers on survey questionnaires about infractions are subject to a strong social desirability bias. This is especially true in the public sector, given the expectations of publicity that come along with it. Additionally, the variability and descriptive subjectivity of ethical violations can cause problems for any attempt at correlating violation types with underlying factors. This article presents the results of a pilot study that was the first of its kind to build on recent work in public ethics violation typology and utilize an anonymous online survey methodology optimized to address these issues. The 2013 Missouri Municipal Ethics Survey (MMES) was administered to municipal government officials, administrators, and employees across the state of Missouri. The main objective of the survey was to shed some light on an important area of public ethics that has not received substantial treatment in public administration scholarship: namely, the degree to which ethics codes and ethics training impact observed rates of ethical infractions in specific categories. The authors were particularly interested in seeing how the implementation and impact of these ethics measures differ across municipality size. The results show that the frequency of observed ethics violations differs in relation to the level of emphasis participants perceive their department to be devoting to ethics training. How- ever, compared to the NGES, the relationship between ethics measures and violations is shown to be more complicated. The results provide the strongest evidence of ethics training impact for three kinds of ethics violations: carelessness with confidential information, indecent treatment of colleagues, customers, or citizens, and improperly accepting personal gifts. While the results provide a limited validation for the impact of ethics measures, the study also highlights the degree to which such measures are poorly understood, haphazardly implemented, and rarely evaluated for effectiveness. These findings lead to a variety of implications for both researchers and public officials. The article is organized as follows: The first section provides an overview of the relevant literature. Particular emphasis is given to Lasthuizen et al. (2011), upon which the ethical infraction categories in the study are predicated. The second section builds upon these infraction categories to develop four hypotheses regarding the relationships between observed infraction rates in those categories, on the one hand, and levels of ethics training, implementation of ethics codes, and variation in municipal size, on the other. The third section covers the data and methods employed in the MMES, which is designed to test these hypotheses, followed by pres- entation of the results of the survey in detail in the fourth section. Finally, in the fifth section, the implications of these results for practitioners and researchers are discussed. LITERATURE REVIEW Ethics Training and Ethics Codes While there is something of a lacuna in the literature regarding actual observed ethical infrac- tion levels in the public sphere, it is also true that ethics training and ethics codes—the ethics measures and policies that this study is looking to connect to infraction rates—have received Page 101  MISSOURI MUNICIPAL ETHICS SURVEY 271 generous attention. A study by West and Berman (2004) of cities with populations over 50,000 finds that 64% offer some form of ethics training activity, though only 36% call it “ethics train- ing.” Training is mandatory for managers in approximately half of the cities that offered it. The West and Berman study also links ethics training to ethical culture, labor–management rela- tions, and employee productivity. Feldheim and Wang (2004) find that 28.2% of cities surveyed have mandatory ethics training for managers, and 31.9% have some ethics training programs. When it comes to the content of ethics training, the most widespread model is a “compliance model” (Menzel, 2007). This kind of content focuses on conforming to applicable rules and regulations. It is often referred to as the “low road,” in the sense that it is designed to spur compliance with minimal legal and regulatory thresholds for ethical behavior (Lewis, 1991). This stands in contrast to what Hejka-Ekins (1988) calls a “high-road” approach; that is, one that focuses on the values underlying the regulations. The high-road approach stresses character education, promoting responsibility and moral autonomy in public servants at all levels, with an emphasis on moral reasoning and knowledge (Menzel, 2007). Van Montfort et al. (2013) delineate a number of dimensions on which the characteristics of training programs can vary: whether the training is mandatory or voluntary, whether it is an insider or outsider doing the training, whether the training is open to training examples from the participants, whether there are follow-up meetings, what the duration of the program is, as well as the size of the participant group. Of course, these variables operate within the wider orga- nizational context; the organization may or may not be conducive to good discussions of ethical issues, and their effects may or may not be conditional upon the characteristics of the participants. With respect to codes of ethics, Feldheim and Wang’s (2004) work suggests that 7 of 10 large cities have a code of ethics. This makes ethics codes by far the ubiquitous form of municipally implemented ethics measure. Ethics codes have become a foundational part of pro- fessional public administration at the local, national, and international levels. The Organization of American States Inter-American Convention Against Corruption states that public servants “should be subject to codes of conduct,” including “requirements for financial and other disclosures, and appropriate disciplinary measures” (cited in Gilman, 2005, p. 5). As with the content of ethics training, the content of codes of ethics can roughly be divided between low-road compliance strictures and high-road “aspirational” language. Meine and Dunn (2013) provide a useful overview of a number of public sector codes of ethics and their elements with respect to developing ethical competency. Svensson and Wood (2004) develop a typology specific to public sector codes of ethics. Gilman (2005) describes successful codes as having practical behavioral goals, being connected to the emotional import of the norms therein, and being institutionally supported and subject to feedback as a living document. Other empirical studies focused on observed ethical states of affairs in the public sphere address a wide range of factors. Menzel and Benton (1991) examine several databases, includ- ing ethics complaints filed with the Florida Commission on Ethics, in an attempt to define some historical/cultural, political, bureaucratic, and demographic features of local jurisdictions that might correlate with levels of ethics complaints. They find that levels of population growth and education levels are the two most influential factors influencing ethics complaints. Feldheim and Wang (2004) report on a national study of cities with populations over 50,000, linking ethical behaviors with public trust. They find that cities where managers have higher perceptions of ethical behavior are also cities where perceptions of public trust are higher. Their recommendations include integrity training, transparency and openness within the organization, Page 102 272 SIEWERT AND UDANI promoting “frank communications between employees and managers,” loyalty to changing public needs, and performance evaluations involving public servants and citizens (p. 73). Other studies that use surveys to measure public ethics factors concentrate on ethical attitudes and environments nationally (Bowman, 1990 ; Bowman & Knox, 2008 ; Bowman & Williams, 1997); practitioner’s values and expectations (Schmidt & Posner, 1986); compar- ing the public and private spheres (Berman et al., 1994); measuring and survey methodology (Giacalone, Jurkiewicz, & Knouse, 2003; Kaptein, Huberts, Avelino, & Lasthuizen, 2005); correlations of ethical climates with damage claims and complaints against the municipality, as well as injury and sick leave (Waring, 2004); and correlations between ethical climate and organizational performance (Menzel, 1993). Menzel (2007) provides a survey of large metro- politan cities and counties with ethics management programs. Measuring and Categorizing Ethics Infractions Two recent studies focus specifically on observed levels of ethical infractions in various types of public organizations: the Ethics Resource Center’s National Government Ethics Survey (2007), which is one element of a longitudinal National Workplace Ethics Study focused primarily on the private sector, and Kaptein and Avelino’s “Measuring Corporate Integrity: A Survey-Based Approach” (2005), which also includes a subset of public entities in the survey. Generally, both studies find that observed ethical violations trend toward parity between the public and private spheres. Kaptein and Avelino (2005) further find that two information categories show increases in the public sector: “false/misleading information to public or media” and “false/misleading statements to government regulators” (p. 73). Given the impor- tance of transparency in governmental functioning (and the link between accurate reporting and accountability), this finding should be somewhat alarming. The NGES breaks out the results by federal, state, and local government. Again, in each case the broad trend is toward parity with the private sector, with a majority of categories near the national average. However, whereas the federal government shows two categories significantly below national averages (lying to stakeholders and misreporting hours worked), and a number of categories significantly above the national averages (environmental violations, Internet abuse, misuse of confidential information, and safety violations), state and local governments have no categories below the national average. In fact, a number of them are significantly above national averages (at the state level: using competitor’s inside information, misuse of confiden- tial information, discrimination, improper hiring practices, abusive behavior, lying to employees, and putting own interests ahead of organization’s; at the local level: environmental violations, improper hiring practices, Internet abuse, and abusive behavior). Kaptein and Avelino (2005) publish no correlations of ethical measures and environments with rates of observed violations. However, the NGES makes very strong claims on this front. According to the NGES report, the presence of both a well-implemented ethics-and-compliance program and a strong ethical culture can reduce misconduct by 60% (NGES p. v). The NGES is a broad survey that addresses a wide variety of infractions in tandem with their contributing factors: ethical culture, ethics codes and training, ethics reporting mechanisms and rates, and ethical components of employee evaluations. The MMES is a more focused project, one that examines more closely—and brings into some doubt—assumptions made in the NGES. Page 103  MISSOURI MUNICIPAL ETHICS SURVEY 273 Despite their contributions, these studies have limitations. First, the NGES investigators assume that traditional methods of ensuring anonymity in surveys are sufficient to overcome the social desirability bias when asking about ethics violations in the public sphere. Telephone surveys involve a live conversation in which a respondent is asked to admit to a live inter- viewer, for example, having observed but not reported one or more instances of criminal ethical violation. Indeed, the public sphere is particularly susceptible to the social desirability bias. However, given that new survey technologies (online surveys) are now available to help miti- gate that bias, this is an assumption that should no longer be relied upon. Second, the NGES investigators assume that misconduct that is overtly illegal is “more likely to be documented” (NGES p. 3). It may be true that such infractions are more likely to draw attention once they are documented. However, considering both the inherently surrep- titious nature of such actions and the increased pressure of the social desirability bias when respondents are asked to report on illegal actions, it is not implausible to conclude that directly criminal behavior is, in fact, less likely to be documented via either a survey or official reporting. Third, both studies were primarily addressed to the private business sphere. The NGES is a subset in a wider survey comprising only 22% (n ¼ 774) of the respondents to the National Workplace Ethics Study, and only 15% (n ¼ 344) of the respondents in Kaptein and Avelino (2005) were public employees. A much greater amount of data regarding ethical states of affairs is available for the private sector than for the public sector. However, the private and public sectors are significantly different, and should be studied independently. To begin with, the private and public sectors diverge along fundamental normative dimensions, including the monopoly on the use of justified coercion, mandates to represent limited priv- ate vs. all-encompassing public interests, limited vs. almost limitless pervasive impact on constituents’ lives, and voluntary vs. involuntary membership (Rawls, 1971). They also diverge along significant organizational and cultural dimensions, including differences in market exposure, legal and formal constraints, public oversight, and political influences (Boston, Martin, Pallot, & Walsh, 1996). These differences clearly warrant an independent focus on the public sphere regarding these issues, and that focus is beginning to emerge (Van Montfort et al., 2013). Finally, neither study utilized any research-supported standardized infraction category scheme. The lack of standardized categories or descriptive language to delineate the various kinds of infractions and infraction families has been a central difficulty in attempting to compare ethical infraction data in the public sphere. Without such empirically verified standards differentiating infraction types, it is problematically subjective for both the researcher and the respondent. When taken together, these limitations at least demand a re-examination of the strong claims the NGES makes with respect to the effect of ethics measures and culture on ethical infraction rates. Lasthuizen et al. (2011) provide the first comprehensive attempt to introduce some standardized categories and descriptive specificity into the rapidly expanding literature on ethics violations in governance. A central goal of their work is to address the almost exclusive focus on “corruption” in international studies on public ethics, arguing that this excludes a large array of moral breaches that are central to ethics and integrity discussions in the Western world. Lasthuizen et al. (2011) offer a validated typology of ethical infractions in governance that seeks to avoid problems of “oversimplification, overgeneralization and/or immediate Page 104 274 SIEWERT AND UDANI condemnation” when infraction types are not distinguished (p. 387). As a broad and inclusive starting point, the violations they seek to address include: . All types of behavior relevant to the organization: behavior within the organization, interactions with external actors (citizens), and private-time behavior as far as it is considered relevant for the organization; . All types of relevant moral norms and values: in laws and rules, in internal codes and procedures, and in informal norms and values not written down; and . Behavior contrary to the organization’s interests but also behavior favoring the organi- zation but harming relevant social norms and values. Drawing on previous work by Hubert (1998) on police integrity, Lasthuizen et al. (2011) develop a questionnaire with 64 manifestations of integrity violations. In each case there is an item querying the rate of observation, as well as an item querying the respondent’s moral judgment, measuring the acceptability of the violation. Using a multiple-step principal- component factor analysis, the authors develop 10 families of infraction types that vary along frequency and acceptability dimensions. Within each of these, more serious and less serious forms of behavior can be distinguished (see Table 1). Although the study is limited to examining one type of public organization (police) in one society (the Netherlands), the development of the typology included considerations and compar- isons from other fields of study, including organizational sciences, theories of ethics in business and public administration, and police research. The resulting families of integrity violations are TABLE 1 Lasthuizen Infraction Categories and Their Descriptions Violation category Category description 1. Corruption: Bribing Misuse of (public) power for private gain; asking, offering, accepting bribes 2. Corruption: Favoritism Misuse of authority or position to favor family (nepotism), friends (cronyism), or party (patronage) 3. Fraud and theft of resources Improper private gain acquired from organization or from colleagues and citizens, with no involvement of external actor 4. Conflict of (public and private) Interference (or potential interference) of personal interest with e public/ interest through gifts organizational interest because of gifts, services, assets, or promises taken 5. Conflict of (private and public) Interference (or potential interference) of personal interest with public/ interest through sideline activities organizational interest because of jobs or activities practiced outside organization 6. Improper use of authority Use of illegal/improper means or methods to achieve organizational goals (sometimes for “noble causes”) 7. Misuse and manipulation of Intended or unintended abuse of (access to) information, such as cheating, information violation of secrecy rules, breaching confidentiality of information, or concealing information 8. Indecent treatment of colleagues Includes not only discrimination (based on gender, race, or sexual orientation), or citizens intimidation, and sexual harassment but also improper behavior like bullying, nagging, and gossiping 9. Waste and abuse of organizational Failure to comply with organizational standards and/or improper performance resources or incorrect/dysfunctional internal behavior 10. Misconduct during private time Conduct during private time that harms people's trust in (public) organization Page 105  MISSOURI MUNICIPAL ETHICS SURVEY 275 anticipated to be “universal, and are thus useful for describing unethical behavior in almost all (public) organizational contexts” (Lasthuizen et al., 2011, p. 389). HYPOTHESES The literature on ethics infraction rates and ethics policy measures provides a strong foundation on which to hypothesize regarding the actual effects of ethics policies on ethical infraction rates. Indeed, the Lasthuizen et al. (2011) study offers an improvement in examining ethical viola- tions. Despite its contribution, few studies thus far have attempted to ascertain whether the implementation of ethics codes and an emphasis on actively training employees on ethics issues have any meaningful effect on actual infraction rates. Following is a discussion of four testable hypotheses that begin to fill the gaps that emerge from a review of the literature on ethics violations in municipalities. First, it is anticipated that the frequency of reported ethical infractions will be positively correlated to municipal population size (H1). This hypothesis rests on the assumption that as the size of the administrative body increases, the temptation to infract (bigger, more complex budgets, larger stakes) and the opportunity to infract (more interactions and transactions, and more personnel involved) increase as well. Menzel and Benton (1991) show that common assumptions about what influences public attention to ethics (such as the size of the population in question) might be mistaken. It may be that common assumptions about what variables influence the number of ethical infractions are also wrong. Second, it is also posited that the implementation of ethics codes and ethics training for municipal officials, managers, and employees will be positively correlated to municipal popu- lation size (H2). This hypothesis rests on the assumption that the greater incidence of ethical infractions in larger municipalities should increase pressure to develop ethical tools, as well as the idea that a larger population with more resources and a more complex and professional oversight structure will put greater pressure on its administration to institute an ethics regimen, even if only for appearances. Ethics codes are the most ubiquitous of ethics measures, but they are still implemented in less than three quarters of large cities (Feldheim & Wang, 2004). The main contention of this article is that scholars must take the lead in evaluating whether the emphasis on such policies and measures in public agencies is likely to be effective in reducing the rate of observed ethical infractions occurring in said agencies. This evaluation is achieved by the last two hypotheses. Third, it is expected that reported frequencies of ethical infractions will have a negative correlation with the implementation of ethics codes (H3). The idea is that by having an ethics code written into the agency’s standard operating procedures—thereby providing an ethical framework for officials, administrators, and employees—ethics codes reduce the temptation toward infrac- tions. They might do this both by clarifying and modeling ethical practices and by delineating the consequences of unethical behavior. As such, it is an empirical question of whether or not these goals are achievable merely with codes of ethics. While written bylaws are indeed important to the operation of administrative agencies and to establishing the social norms to which employ- ees must conform and be held accountable, they may not be sufficient to actually alter behavior and reduce the rate of observed ethical infractions in an agency. As pointed out by Gilman (2005) “any final analysis of the impact of a code must include how well it affects behavior” (p. 6). Page 106 276 SIEWERT AND UDANI Fourth, it is anticipated that the reported frequencies of ethical infractions will have a negative correlation with the implementation of ethics training (H4). Ethics training should encourage ethical behavior and serve to improve the ethical environment in a municipal administration. Ethics training should provoke a substantive discussion on the municipality’s ethical guidelines among officials, administrators, and employees. This serves not only to highlight the permissible/ impermissible fence posts and some of the most common accidental—and not so accidental— routes past them, but can also help to foster an open atmosphere that encourages ethical practices and dialogue, thus helping to avoid difficult situations in the first place. As the literature review shows, ethics training is not only much less widely utilized than ethics codes, but due to its nature can vary greatly based on circumstances and content. Despite these variations, if ethics training as a policy cannot show an overall impact (even a small one) on ethics infractions, a review of general assumptions about ethics policies and measures may be called for. Finally, a quick word on the limited nature of the hypotheses tested. The present work begins to fill in some gaps, but is by no means a comprehensive assessment of ethics measures. First, ethics codes and training are but two of a wide variety of ethics measures that may be implemen- ted. Second, the authors are assessing neither all of the motivations for, nor the complete impact of, ethics codes and training. Such measures may be implemented for other reasons besides directly reducing infraction rates. These motivations may include reducing an agency’s legal liability by showing a reasonable effort to address ethics issues. Such measures may also be implemented in order to burnish the public perception of the agency in question. In fact, anecdotal evidence suggests that burnishing an agency’s image post-scandal is one of the most common ways that ethics measures are introduced in municipal settings. Further, while ethics training and codes may serve to mitigate unethical behavior, they may also serve to support and encourage more ethical behavior, such as going the extra step to ensure that purchasing and hiring processes are done in the most transparent and objective manner possible. Finally, the survey did not ask for specific frequency, duration, and quality of the ethics training in respon- dent agencies. Instead, the general “emphasis” on ethics training was queried. The present work is limited to infraction reduction as a consequence of general implementation levels of ethics codes and training. Some of the space left unexplored will be addressed in the implications section. DATA The present study tests the proposed hypotheses by administering the 2013 Missouri Municipal Ethics Survey (MMES). The survey universe is pulled from the Missouri Municipal League’s listing of Missouri municipalities. Because the target of this research is common-size municipalities and not large metropolitan cities, St. Louis and Kansas City are excluded from the survey universe. Aside from these exceptions, every member of the target population was contacted. The MMES was conducted online in a manner that placed a high premium on the respondent’s sense of anonymity. Research shows that a strong sense of anonymity on behalf of the respondent can counter the social desirability bias (Randall & Fernandes, 1991), and that online surveys are particularly suited for this purpose (De Leeuw, 2005; Frippiat, Marquis, & Wiles-Portier, 2010; Joinson, Paine, Buchanan, & Reips, 2008; Kreuter, Presser, & Tourangeau, 2008). An initial decision was made to administer the survey using a widely recognized publicly available online survey service (SurveyMonkey), which the respondents might Page 107  MISSOURI MUNICIPAL ETHICS SURVEY 277 have encountered before and with which they were perhaps familiar and more comfortable than other methods. Contact with each municipality began with a phone call to the municipal clerk, the script for which emphasized the anonymity of the survey. If the clerk indicated a willingness to take part and/or distribute the survey to other officials and employees in the municipality, an e-mail was forwarded that again emphasized anonymity and contained a link to the survey. In order to main- tain the respondent’s sense of anonymity throughout the survey-taking process, the demographic data were limited to just enough to ensure that the study had a sufficiently diverse sample. For example, respondents were not queried about which region of Missouri they resided or worked in. Instead, the survey was administered in phases, beginning with the areas surrounding Kansas City and St. Louis, then expanding into the rest of the state to ensure that an appropriate mix of urban and rural municipalities was represented. The demographic data requested of respondents included only a title description, length of service in present position, length of service in public service generally, and the size of the municipal population served. Respondents were asked about their experiences with ethics infractions in their present position, which permitted statistical tests to control for how much time the person had spent in that particular position. Of 540 contacts (all of the Missouri municipalities listed by the Missouri Municipal League in 2012), 166 valid responses were recorded. While not ideal, it is a sufficient response rate rela- tive to online survey standards (Frippiat et al., 2010). In the MMES, most respondents (33.3%) are city managers or administrators, followed by city/county employees in nonmanagerial positions (28.3%), city clerks (13.3%), and city council members (10.8%). Thirty-four percent of respondents work in municipalities with less than 1,000 people; 23% in municipalities with 1,000–5,000 people; 16.2% in municipalities with 5,000–10,000 people; and 26.7% in municipalities with more than 10,000 people. Compared to the population from which the sample is drawn, 55% of Missouri municipalities have less than 1,000 people; 27% have 1,000–5,000 people; 7% have 5,000–10,000 people; and, 11% have more than 10,000 people. Table 2 provides the sample distribution of respondents by current position and size of munici- pality in which they work. A larger proportion of city managers/administrators serve in mid-range municipality populations. With the exception of the smallest municipalities, the MMES comprises more responses from city managers/administrators than nonmanagerial staff. A majority of respondents (57.7%) who work in municipalities with 5,000–10,000 people are city managers, assistant city managers, administrators, or directors of administration. In contrast, only 39.5% of respondents with the same position work in municipalities with 10,000 people or more. In municipalities such as these, a sizable proportion of respondents are city council members or hold elected positions (30.2%). In comparison, 23.1% of respondents are city council members or hold elected positions and work in municipalities with 5,000–10,000 people. Additionally, over half of the participants (59%) have worked in public service for more than 10 years. At the time of the survey, participants also generally have worked in the same position for a long period of time. The median response category is between 5 and 10 years, while 33% of participants have worked in their current job for more than 10 years. Twenty percent of participants have worked in their current job between 1 and 2 years. The main concepts of interest are ethical violations and ethics codes and training. With respect to the latter, respondents were asked whether “your agency” had a code, and what level of emphasis (if any) was put on ethics training. The neutral word “agency” was used in order to not bias the reports by unnecessarily limiting the question to the respondent’s own department, Page 108 278 SIEWERT AND UDANI TABLE 2 Sample Distribution of Respondents by Current Position and Municipality Population Position <1,000 1,000–5,000 5,000–10,000 ≥10,000 Other 1.82 2.7 3.85 2.33 City council member 1.82 2.7 15.38 27.91 County elected official 0.00 0.00 0.00 2.33 City manager/administrator 18.18 45.95 46.15 30.23 City or county employee 40.00 29.73 11.54 25.58 Director of administration 0.00 0.00 7.69 2.33 Mayor 7.27 2.7 7.69 0.00 Other local office 0.00 0.00 0.00 2.33 Special district employee 0.00 0.00 3.85 0.00 Trustee/chairperson of trustees 1.82 0.00 0.00 0.00 Assistant city manager/administrator 0.00 0.00 3.85 6.98 City clerk 29.09 16.22 0.00 0.00 Total 100% 100% 100% 100% Source: 2013 MMES. Notes: Sample is equal to 166 respondents who provided a current employment position. Distribution of respondents is expressed as the percentage of respondents in a municipal population size category. but also not unnecessarily expanding it beyond the respondent’s range of knowledge by asking about broader terms such as “your municipality.” With regard to ethical violations, these can, of course, come in an almost endless variety. They can be single acts by an individual, or they can be comprised of a diachronic sequence of events involving any number of actors. They can be intentional, negligent, or merely acci- dental. They can vary in seriousness from feloniously criminal to barely worth mentioning. What counts as a violation in one context may not count as one in another context. Background information may mitigate the all-things-considered blame attached to a violation, even when the act itself is clearly prima facie a violation. Especially in a public institutional context where complex positional obligations, duties, and prohibitions are layered on top of (and can often conflict with) personal obligations, duties and prohibitions, attempting a broad measure of the actual levels of ethical infraction is a daunting exercise to say the least. Given a particular context, one approach is to attempt to define some broad categories of infrac- tion types that serve to subsume much of the variation within a typology that groups families of violation types together. It is for this reason that the work of Lasthuizen et al. (2011) is so crucial for a project like this one. The typology provides a coherent proven starting point from which to proceed when measuring ethical infractions. A significant challenge was to develop a set of intuit- ively clear questions for the respondents regarding different types of possible unethical behavior that would correlate with the Lasthuizen categories, allowing the study to draw some conclusions about the effect of the independent variables on the infraction rates in these various established categories. However, the variability of descriptions of ethical infractions is not the only challenge. The social desirability bias is not just a general problem, but is itself variable. It is sensitive to the moral opprobrium attached to the particular form of ethical infraction in question. The higher the levels of moral condemnation attached to a particular infraction type, the more likely that respondents will not feel comfortable honestly reporting on the frequency with which they have observed such actions. Actions that are directly criminal, and understood as intentional Page 109  MISSOURI MUNICIPAL ETHICS SURVEY 279 corruption (such as bribe-taking, or embezzlement and theft), are therefore theoretically much more subject to social desirability bias than actions that may be unethical, but are not intention- ally criminal or corrupt (such as carelessness with confidential information, or creating a hostile work environment). Intentionally criminal or corrupt actions are also presumably more difficult to observe, since the actor will likely take precautions to avoid observation. Further, inquiring about a kind of infraction that is intentionally criminal or corrupt can not only suppress positive responses for that particular question, but also have lingering effects for other, related questions. In addition, it is not an unreasonable assumption (though not one supported by any data) that the closer an infraction is to direct criminality, the less responsive infractions of that type will be to the implementation of ethics codes and training. Corruption, theft, and fraud presumably carry their own very powerful motivations that will probably find only a weak opponent among the motivations and knowledge instilled during an ethics training session. As a result of these considerations, a decision was made to exclude the first two categories of direct corruption in the Lasthuizen typology from the survey. Categories (1) bribing, and (2) nep- otism are therefore not addressed. However, some directly criminal questions about embezzle- ment and theft were included toward the end of the list of possible infractions on the survey (so as to minimize their impact on other questions). Given that the survey concerned observed levels of unethical behavior, the present study also considers what types of infractions in the typology might not be amenable to direct observation within the workplace. Ethical infractions that involve elements outside of the workplace are problematic in this respect; therefore the two categories of infraction that involved such elements were also not included: (5) conflicts of inter- est through sideline activities, and (10) misconduct in private time. This leaves the survey with questions directly addressing 6 of 10 of Lasthuizen’s infraction types. The rate at which survey participants observed each ethical violation was measured using an ordinal scale consisting of five response categories: Never (0); Rarely (1); Sometimes (2); Often (3); Constantly (4). To measure the main correlates of ethical infraction levels, several independent variables were employed. First, an ordinal-level variable was used to measure municipal population that categorized population size according to under 1,000 people, 1,001 to 5,000 people, 5,001 to 10,000 people, and more than 10,000 people. Second, participants were asked whether their agency had a written code of ethics in place. Responses were coded using a binary framework that signified that their agency either did not (0) or did (1) have a written code of ethics. Last, participants were asked about the extent to which they believed ethics training is emphasized within their agency. An ordinal-level variable was used to measure ethics training emphasis, where participants had the choice of selecting no emphasis (0), little emphasis (1), some empha- sis (2), or strong emphasis (3). METHODS The analysis consists of comparing the proportion of survey participant subgroups that observe each of the six kinds of ethics violations. The main subgroups of interest are based on the main independent variables: . population size of the municipality in which the participant works, . whether the participant’s agency has an ethics code, and . level of emphasis on ethics training in the participant’s agency. Page 110 280 SIEWERT AND UDANI The methods employed in this article identify whether there are statistically significant differences in ethics violations across population size, institutionalized ethics codes, and levels of training emphasis. Correlations are used to measure the magnitude of the association between each ethics violation category and each independent variable. As such, this study is not prepared to say anything causal; rather, it aims to highlight trends in ethical infractions across municipa- lities, training emphasis, and formal agency code. RESULTS Table 3 correlates the Lasthuizen infraction categories with specific questions asked in the MMES. Table 4 provides the variation of ethical infraction observations across the most com- mon employment categories in the 2013 MMES. The data show that some ethical infractions are more visible or common based on one’s position in public service. City council members believe that mishandling of confidential information and waste of organizational resources occur more frequently than those in other positions do. City managers and administrators believe that improper gifts and improper use of authority occur more frequently than council members and nonmanagerial staff. Observation of instances of indecent treatment is frequent among city managers/administrators, and even more frequent among staff members. Table 5 provides correlations between ethical infractions and municipality population size. In the second column, Spearman correlations are provided to estimate a linear relationship between variables that are not assumed to be normally distributed, but are at least measured at the ordinal level. Spearman correlations also test the extent to which two ordinal variables are independent. As such, statistical significance indicates at what level the null hypothesis is rejected. In the third column, the extent to which ethical infractions significantly differ across municipality size is also assessed. The results provide evidence for H1. Except for reporting instances of fraud and theft, ethical infractions have positive and significant correlations with increasing municipal population size. While the null hypothesis can be rejected in a majority of ethical infractions, the magnitude of association with municipality size is moderately small. Further, the results provide strong TABLE 3 Lasthuizen Infraction Categories Surveyed in MMES and Questions Addressing Each Type of Infraction Specific infraction questions associated with each category: “How often have you witnessed the following kinds of Lasthuizen infraction category ethical infractions in your present position?” Fraud and theft 1. Theft and embezzlement 2. Financial gain due to misuse of confidential information Mishandling and manipulating 1. Carelessness with confidential information confidential information 2. Misuse of confidential information Conflict of interest through personal gifts 1. Acceptance of improper gifts or favors Indecently treating colleagues, customers, 1. Violation of employee privacy or citizens 2. Hostile work environment 3. Sexual harassment Improperly using position of authority 1. Vote and favor trading behind closed doors Intent to waste and abuse 1. Falsification or improper manipulation of financial data organizational resources Page 111  MISSOURI MUNICIPAL ETHICS SURVEY 281 TABLE 4 Observation of Ethical Infractions by Most Common Position Types Mishandling/ Conflict of Waste and manipulating interest Improper abuse of Financial confidential through use of Indecent organizational Position gain information gifts authority treatment resources Obs. City council member 0.28 1.44 (1.10) 0.28 0.17 0.61 0.44 (0.92) 18 (0.83) (0.57) (0.38) (0.92) City manager/ 0.17 1.37 (0.81) 0.46 0.41 0.83 0.19 (0.52) 54 administrator (0.50) (0.69) (0.79) (0.95) City/county employee 0.26 1.15 (1.08) 0.34 0.34 0.96 0.17 (0.48) 47 (0.61) (0.76) (0.92) (1.04) City clerk 0.24 0.86 (0.89) 0.09 0.14 0.68 0.14 (0.47) 22 (0.77) (0.29) (0.47) (1.04) All other 0.16 1.13 (0.80) 0.56 0.54 0.52 0.16 (0.48) 25 (0.37) (0.87) (0.83) (0.71) Total 0.19 1.19 (0.94) 0.38 0.34 0.76 0.18 (0.53) 166 (0.57) (0.71) (0.75) (0.91) Source: 2013 MMES. Notes: Mean ethical infraction observations (and standard deviations) shown for most common positions in the sample. Number of respondents provided in last column. Higher mean values indicate observing infractions frequently. Based on 166 respondents who provided a current employment position. evidence of statistically significant differences in observed mishandling or manipulation of information across municipality size (χ 2 ¼ 11.94, df ¼ 3, p ¼ 0.01). The results provide weaker evidence that accepting favors through gift-giving differs across municipality size (χ 2 ¼ 7.04, df ¼ 3, p ¼ 0.07). The results provide no support for the second and third hypotheses, which suggests that the implementation of formal ethics codes is neither tied to municipality population size nor asso- ciated with levels of observed ethical infractions. The correlation between municipality size TABLE 5 Relationship Between Ethical Infractions and Municipal Population Size Spearman Differences across correlation categories (χ 2) Fraud and theft 0.07 1.20 Mishandling/manipulation of confidential information 0.25*** 11.96*** Conflict of interest through gifts 0.26**** 7.04* Improper use of authority 0.24*** 5.54 Indecent treatment of colleagues, customers, or citizens 0.18** 5.95 Waste and abuse of organizational resources 0.21**** 4.06 Source: 2013 Missouri Municipal Ethics Survey. Notes: Spearman correlations provided in the second column. Higher scores on each ethical infraction scale signify more observed infractions. In the third column, χ 2chi-square statistics are given, which assess differences in ethical infraction reporting across municipal population size using a Kruskal-Wallis test. Statistical significance indicates at what level of certainty the null hypothesis (i.e., that two indicators are independent) can be rejected. *p < 0.10; **p < 0.05; ***p < 0.01; ****p < 0.001. Page 112 282 SIEWERT AND UDANI and whether an agency has an ethics code is negligible (ρ ¼ 0.07). Additionally, having an ethics code did not significantly differ across municipality size. Therefore, when it comes to deciding whether to incorporate a code of ethics in standard operating procedures overall, agencies are not likely to be influenced by how many citizens they serve. Furthermore, the results show no evidence that formal agency codes of ethics made significant differences in observed ethical infractions. However, agencies that do have an ethics code are more likely to put a strong empha- sis on ethics training than agencies that do not have an ethics code (χ 2 ¼ 27.71, df ¼ 1, p < 0.001). The results provide adequate evidence for the fourth hypothesis, which states that the implementation of ethics training in an agency will be negatively associated with observed ethical infractions. However, the evidence is limited. Table 6 provides correlations between ethical infractions and the emphasis that an agency puts on ethics training. Spearman correla- tions are once again provided to estimate a linear relationship between ordinal-level variables and the extent to which ethical infractions significantly differ across ethics training emphasis. A stronger emphasis on ethics training is inversely related to the majority of ethical infrac- tions, with the exception of instances of fraud, theft, waste, and abuse of organizational resources. While the signs of all correlations are in the expected direction, the effect size is still moderately small and similar to the effect size of municipality population. However, the results do show that differences in some observed ethical infractions are statistically significant across levels of ethics training emphasis. That is, agencies that strongly emphasize ethics through train- ing have a relatively lower percentage of observed ethical infractions. The results provide the strongest evidence that mishandling and manipulation of confidential information significantly differs across ethics training (χ 2 ¼ 11.65, df ¼ 3, p ¼ 0.01). Eighty percent of respondents who work in agencies that give a strong emphasis to ethics training believe that the inappropriate use of confidential information never or rarely occurs. In comparison, only 45% of respondents who work in agencies that give no emphasis to ethics training share the same sentiments. The results thus far suggest that ethical infractions are positively related to municipality population size and negatively related to agency emphasis on ethics training. To further dem- onstrate that ethics training makes a difference, ethical infractions between training emphasis TABLE 6 Relationship Between Ethical Infractions and Agency Emphasis on Ethics Training Spearman Differences across correlation categories (χ 2) Fraud and theft 0.09 1.10 Mishandling/manipulation of confidential information 0.24**** 11.65*** Conflict of interest through gifts 0.23**** 6.48* Improper use of authority 0.16** 4.31 Indecent treatment of colleagues, customers, or citizens 0.16** 6.65* Waste and abuse of organizational resources 0.09 0.94 Source: 2013 Missouri Municipal Ethics Survey. Notes: Spearman correlations provided in the second column. Higher scores on each ethical infraction scale signify more observed infractions. Higher scores on ethics training indicate stronger attention to training. In the third column, χ 2 statistics are given, which assess differences in ethical infraction reporting across ethics training emphasis using a Kruskal-Wallis test. Statistical significance indicates at what level of certainty the null hypothesis (i.e., that two indicators are independent) can be rejected. *p < 0.10; **p < 0.05; ***p < 0.01; ****p < 0.001. Page 113  MISSOURI MUNICIPAL ETHICS SURVEY 283 levels should remain, even in agencies that serve larger populations. Figure 1 shows the impact of ethics training on different kinds of ethical infractions across municipality population size. The y-axis measures ethical infractions, where larger numbers indicate more observed infrac- tions. Respondents who work in agencies that give no or minimal emphasis to ethics training are combined into one category (indicated by solid line), and compared to respondents who work in agencies that give some or strong emphasis to ethics training (indicated by dotted line). If ethics training makes a difference in observed ethical infractions, then the dotted line should be consistently lower than the solid line. While the evidence is limited, training makes the clearest impact in three kinds of ethical infractions: carelessness with confidential information; conflict of interest through gifts; and indecent treatment of colleagues, customers, and citizens. Generally, as population size increases, people who work in agencies that give at least some emphasis to ethics training have lower mean ethical infraction scores than those who work in agencies that give little or no emphasis to ethics training. Yet the results suggest that ethics training makes only a marginal impact on improper gift-giving and indecent treatment in the largest municipalities. The results show that the largest impact of training seems to take place in municipalities with 5,000–10,000 people. This may be due to the sample of respondents. Differences in ethical infractions in larger populations may be an artifact of city managers and administrators who are oriented toward day-to-day operations of municipal government and are better situated to evaluate the impact of ethics training on personnel than elected officials. Figure 1 also sheds light on the limits of ethics training. There are three cases in which mean ethical infractions among respondents who work in agencies that emphasize ethics training are not lower than among respondents who work in agencies that give no or minimal emphasis: financial gain, improper use of authority, and waste and abuse of organizational resources. FIGURE 1 The impact of ethics training on ethical infractions. Source: 2013 Missouri Municipal Ethics Survey. Notes: A solid line indicates no to minimal emphasis on training and a dotted line indicates some to strong emphasis on training. Emphasis on training indicator originally has four categories, but are reduced to increase respondents in training categories. Higher values on y-axis reflect more observed ethical infractions. Page 114 284 SIEWERT AND UDANI Interestingly, these instances are observed in municipalities in the upper-middle tier that has a large proportion of city managers and administrators. Furthermore, the results also point out that ethics training makes marginal differences in observed ethical infractions in municipalities with 1,000 or fewer people. DISCUSSION In this study, individual responses regarding observations of ethics infractions and measures are aggregated to examine the extent to which agencies both emphasize ethics training and have lower observed ethical infraction rates. Respondents are not asked whether they themselves participated in ethics training if offered at their agency. Nor are respondents asked whether they themselves actually engaged in ethical infractions. While the findings show that the impact of ethics training is limited, sufficient evidence is offered to initially confirm the assumption that, at least in certain categories, agencies emphasizing ethics training will make their employees more conscientious regarding the possibility of ethical violations and lead to fewer violations becoming realities. The frequency of observed violations varies greatly across the infraction categories. Some violations are clearly more rare events than others, which is reflected in the data that are skewed to the right. For example, 88.1% of participants reported that they never observed financial gains due to the improper use of confidential information. Only 6% of participants reported that they either sometimes or often observed personnel improperly using confidential information to benefit financially. Similar percentages of participants in the “never” category are obtained with other ethical violations that could either involve criminal charges or are harder to observe, such as falsification or improper manipulation of financial data (87.5%), vote trading behind closed doors (78.6%), and accepting improper gifts or favors (73.2%). Not all ethics violations exhibit a disproportionate percentage of “never” responses. There is a considerably lower percentage of participants reporting they never observed carelessness with handling confidential information (27%). Forty-seven percent of participants report they never observed misuses of confidential information, and less than half of the participants (49.1%) report they never witnessed a hostile work environment. While it is not implausible that the more serious infractions are indeed as rare as the results indicate, it is clearly also possible that the social desirability bias influenced participants’ reporting of actual ethics violations despite our best efforts to minimize it. This suggests that the disproportionate percentage of “never” responses could bias the results and lead to an under- estimate of both observed ethical infractions and the impact of ethics training. Two procedures are taken to account for this possibility. First, correlations are measured excluding respondents who state they never observed ethical infractions. Ethics training is still significantly correlated with a reduction in mishandling confidential information ( 0.21, n ¼ 154, p ¼ 0.01) and indecent treatment of others ( 0.20, n ¼ 106, p ¼ 0.04). In this case, the correlation between ethics training and waste and abuse of organizational resources increases to 0.40; however, this is only based on 26 respondents. In order to further address this issue, a grand scale was built composed of the combination of separate ethical infraction measures. An individual respondent who never observed one parti- cular category of infraction is still unlikely to never have observed any at all. An aggregate scale Page 115  MISSOURI MUNICIPAL ETHICS SURVEY 285 would capture more variation of responses to different questions about ethical infractions than an assessment of each ethical infraction question separately. The results of this analysis show that the ethical infraction questions form a highly reliable scale, with a Cronbach’s α of 0.76. In addition, “never” responses only consist of 18.9% of total respondents. The results are consist- ent with previous findings presented in this article. The scale has a larger and statistically significant correlation with municipal population size (ρ ¼ 0.33, p < 0.001), while differences in ethical infractions across municipal population are also statistically significant (χ 2 ¼ 18.76, df ¼ 3, p < 0.001). The scale has a similar correlation with ethics training (ρ ¼ 0.26, p < 0.001). Differences are also statistically significant across ethics training emphasis (χ 2 ¼ 16.00, df ¼ 3, p < 0.001). Yet ethical infractions still do not significantly differ across agencies that do and do not have formal ethics codes. Other data analysis suggests that ethical infractions are influenced by ethics training, regard- less of whether an agency emphasizes ethics for incoming personnel or on a continual basis. The Spearman correlation between the two kinds of training is large and statistically significant (ρ ¼ 0.76, p < 0.001), and the measures form a highly reliable scale (Cronbach’s α ¼ 0.87). When using continual emphasis on training as an alternative indicator, the results are generally consist- ent with previous findings on ethical infractions and municipal population size discussed in the article. Emphasis on ethics training does not significantly differ across municipality size. Yet ethical infractions do significantly differ across how much agencies emphasize ethics training both to incoming personnel and on a continual basis. The authors also constructed an “ethics activity” scale that includes both kinds of training and whether an agency has a formal ethics code. This scale is also highly reliable (Cronbach’s α ¼ 0.76), and again produces similar results consistent with previous findings. However, ethics measures do not differ across municipal population size; agencies with a higher level of ethics training activities have significantly lower ethical infractions in certain categories than agencies with a lower level of ethics training activities. IMPLICATIONS The MMES takes an important first step in filling gaps of knowledge regarding ethics mea- sures and infractions at the municipal level. Perhaps the first lesson is how much work remains to be done on this subject. However, significant advances have been made which allow an initial set of policy suggestions for practitioners. A surprising finding, when looking at municipalities under 10,000 residents, is that, despite the fact that larger municipalities are associated with higher infraction rates, and despite the fact that the impact (where there is one) of ethics training is stronger in larger municipalities, larger municipalities are no more likely to have implemented ethics measures than smaller municipalities. This makes these municipalities the lowest-hanging fruit with respect to the impact that ethics measure might have. Leaders in such municipalities (1,000–10,000 residents) have perhaps the strongest case for reviewing and overhauling their ethics policies. Although this research suggests that ethics codes are not sufficient by themselves to directly reduce ethical infraction rates, codes are important because they establish a basis upon which a wider ethics program can be built. First, codes, as a set of ethics rules, can illuminate a minimum standard below which no official or employee should fall. By delineating acceptable Page 116 286 SIEWERT AND UDANI behavior from unacceptable behavior on even small issues (such as carelessness with confidential information), they can avoid the small pitfalls. Such pitfalls, when combined with a cover-up of the initial mistake, can lead to much bigger problems. Second, codes can set forth a set of aspirational values and goals that serve to make sense of the seemingly arbitrary guidelines in the specific rules. For example, suppose a code sets forth a goal of utmost objectivity and transparency within the purchasing process. This goal can help to explain why the code prohibits accepting that cup of coffee offered by a potential vendor. This can change how practitioners perceive rules. Rules are much more likely to inspire compliance when the reasons for the rule are clearly understood. Otherwise, such rules can appear disheart- eningly arbitrary. Third, this study shows that the presence of a code makes it much more likely that any given institution will also implement an ethics training regimen. A strong ethics training regimen makes a difference. Perhaps the most important finding of the present work is to confirm that while stronger emphases on ethics training (as opposed to ethics codes on their own) are correlated with a drop in infraction rates, the actual breadth of that correlation is much more complicated than previous studies have indicated. A central feature of the emerging complexity of the relationship between ethics measures and actual ethics infractions is that ethics measures only seem to be effective against certain kinds of ethical violations. An encouraging finding is that the strongest effects of ethics training fall on the kinds of infractions seen most frequently. The strongest negative correlation is in the category of carelessness with confidential information, which has the lowest “never” response of all infraction types. The two other categories of infraction that showed a statistically significant impact in response to ethics training were the acceptance of improper gifts or favors and the indecent treatment of colleagues, both of which can lead to hostile work environments. These results should inform guidelines regarding the content of ethics training. Specifically, it would seem to suggest that a strong focus on these areas of infraction could pack the most “bang for the buck” when it comes to the limited time and resources any institution can commit to ethics training. This recommendation conforms to the intuition that ethics training is less about changing people’s moral character, and more about teaching them to avoid inadvertently or negligently crossing moral boundaries. What training may primarily do is point out the possible ethically problematic consequences of otherwise benign-seeming actions. Practitioners at all levels can come to recognize the ethi- cal import before taking such actions. Hopefully, this leads to smarter ethical decision-making overall. As an example of this, consider that the acceptance of improper gifts or favors is a practice easily justified to oneself (especially for those new to the political arena) if the moral hazards are not clearly delineated. The naive response to an invitation to a cup of coffee might be some- thing you hear often in the statements of public officials under the ethics spotlight: “This cup of coffee can’t sway my opinion.” This kind of thinking can be undermined by training that points out that sitting down for a cup of coffee with a party that has potential business before the munici- pal government doesn’t just provide you with one more cup of coffee. In fact, it gives that party the opportunity to frame the issue at hand and make their case with a nonpublic and unchallenged line of argument, leaving potential opposing parties at a disadvantage. Further, the significance of even the appearance of impropriety of being seen having a cup of coffee with an interested Page 117  MISSOURI MUNICIPAL ETHICS SURVEY 287 party is something that training can drive home. Similarly, indecent treatment that leads to a hostile working environment can be impacted by pointing out the legal and practical ramifica- tions of such behavior in an independent setting, thereby hopefully countering the knee-jerk emotional responses that are causing the problem. The present work has shown that the impact of ethics training can be significant even if it is only confined to a limited set of infraction categories. However, the impact of the correlation between ethics training and these infraction categories is potentially even bigger. Larger ethical problems often arise in response to smaller mistakes, creating difficult dilemmas. For instance, accidentally allowing word of the current lowest bid in a purchasing process to get out may be an innocent mistake (papers left where they shouldn’t have been). But this tainting of the purchasing process can lead to cover-ups, accusations of favoritism, and any number of larger issues. By avoiding the first small mistake, the larger consequences are also avoided. On the other hand, actions motivated by a clear intent to do wrong, such as misusing confidential information for financial gain, or outright theft and embezzlement, are less likely to be impacted by training that points out moral boundaries. In these cases, the violator likely already knows that the ethical lines are there, and is willing to ignore them for independent gains. However, there are still several lessons to be drawn from pointing out the limited effectiveness of ethics codes and training with respect to these more serious and less common infractions. The first lesson is that the possibility of such violations needs to be addressed via other means. Codes and training by themselves, no matter how comprehensive, do not comprise a full regimen of ethics policies. If perpetrators of such deeds do not respond to training, then the first means of defense is to keep them out of the ranks. Ethics must be an area of emphasis, and per- haps most importantly, a consequential metric for decision-makers throughout the hiring and promotion process. This can serve to weed out bad actors whose less serious, but known, infrac- tions hint at their willingness to infract more seriously. This is not meant to be an endorsement of any kind of strict zero-tolerance policy (such inflexible strictures can be more harmful than helpful). Instead, it is meant to address unfortunately common promotion processes that reward short-term gains in productivity over ethical considerations. Of course, it is impossible to keep all bad actors out of the ranks. This means that co-workers must be all the more vigilant, and have a clear and unencumbered means of reporting misdeeds. Especially given the limits of training shown in the present work, the existence of well- publicized and unencumbered ethics reporting pipelines is crucial. First and foremost, those reporting a misdeed need a clear sense that they will not suffer retribution for having made the report, even if the perpetrator is a superior. Such reporting pipelines may take the form of anonymous hotlines, or simply be comprised of well-trained managers who will guard against retribution and see that the proper steps are taken in response to such reports. This emphasis on the role of managers in the reporting process highlights another important point regarding the content of ethics training. Ethics training should not only be something that everyone (not just newcomers or certain positions) receives, but the content of the training should be tailored to the role of the audience. For example, lower-level employees and officials need to be alerted to the existence of unencumbered and reliable means of reporting misdeeds, and managers need to be trained in ensuring that such reporting pipelines work as advertised. Furthermore, ethics training cannot be a static curriculum. The ethical issues that require attention are in constant flux. Changing circumstances—including changes in demographics Page 118 288 SIEWERT AND UDANI and population, institutional structures, available technologies, and public perceptions of government—all impact the issues that effective ethics training should highlight. Especially, new Internet technologies provide both a vast new arena of resources for small municipalities and an equally vast new set of potential pitfalls. Is confidential information shared via open e-mail exchanges? Are social media interactions poisoning the work atmosphere? If three of five city council members are taking part in a debate surrounding local issues on Twitter, is that a meeting subject to open-records laws? This last point about possible cyber-infractions underlines an important lesson from the present work for both practitioners and researchers. The body of knowledge available on the subject of public ethics can benefit greatly from continuous attention to the wide variety of ethical infraction types and possibilities in an increasingly complex world. This means that researchers need to continue to refine the infraction categories and the broad range of possible contributing factors, a process that necessarily includes input from practitioners who are encountering new situations and infractions all the time. On the other hand, practitioners need to refine and optimize reporting methods and make ethics investigations and verdicts available for researchers, even if only in aggregated form. As was pointed out by an anonymous reviewer, it would have been ideal to compare perceived infraction levels as measured by the MMES survey against some objective measures of ethics investigations and their outcomes. However, not only are such data very difficult to come by (due to wide differences in reporting of ethics investigations), but the variations in descriptions of the violations themselves make them almost impossible to compare across jur- isdictions. Ameliorating the roadblocks to progress will require ever more cooperation between practitioners and researchers. This is perhaps the most important lesson for both sides. ACKNOWLEDGMENTS Special thanks to Raymond Deppen, for his tireless efforts on data entry. Thanks also to the anonymous Public Integrity reviewers for their suggestions. FUNDING Special thanks to the Center for Ethics in Public Life at the University of Missouri St. Louis for funding and support. REFERENCES Berman, E., West, J., & Cava, A. (1994). Ethics management in municipal governments and large firms: Exploring similarities and differences. Administration & Society, 26(2), 185–203. doi:10.1177/009539979402600204 Boston, J., Martin, J., Pallot, J., & Walsh, P. (1996). 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Arlington, VA: Ethics Resource Center. Feldheim, M., & Wang, X. (2004). Ethics and public trust: Results from a national survey. Public Integrity, 6(1), 63–75. doi:10.1080/10999922.2004.11051242 Frippiat, D., Marquis, N., & Wiles-Portier, E. (2010). Web surveys in the social sciences: An overview. Population, 65(2), 285–311. doi:10.3917/pope.1002.0285 Giacalone, R., Jurkiewicz, C., & Knouse, S. (2003). Exit surveys as assessments of organizational ethicality. Public Personnel Management, 32(3), 397–410. doi:10.1177/009102600303200306 Gilman, S. C. (2005). Ethics codes and codes of conduct as tools for promoting an ethical and professional public service: Comparative successes and lessons (Paper prepared for PREM). Washington, DC: World Bank Group. http://www.oecd.org/mena/governance/35521418.pdf Hejka-Ekins, A. (1988). Teaching ethics in public administration. Public Administration Review, 48(5), 885–891. doi:10.2307/976904 Hubert, L. W. J. C. (1998). 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Public Integrity, 6(3), 189–206. doi:10.1080/10999922.2004.11051253 Page 120 Copyright of Public Integrity is the property of Taylor & Francis Ltd and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. Page 121 Fordham Urban Law Journal Volume 21 Number 1 Article 2 1993 Keeping the Faith: A Model Local Ethics Law - Content and Commentary Mark Davies Fordham University School of Law, New York Law School Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Legal Ethics and Professional Responsibility Commons Recommended Citation Mark Davies, Keeping the Faith: A Model Local Ethics Law - Content and Commentary, 21 Fordham Urb. L.J. 61 (1993). Available at: https://ir.lawnet.fordham.edu/ulj/vol21/iss1/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. Page 122 Keeping the Faith: A Model Local Ethics Law - Content and Commentary Cover Page Footnote Mark Davies is the former Executive Director of the New York State Temporary State Commission on Local Government Ethics and the former Deputy Counsel to the New York State Commission on Government Integrity. He is currently a practicing attorney in Tarrytown, New York, and an Adjunct Professor of Law at Fordham University School of Law and New York Law School. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol21/iss1/2 Page 123 KEEPING THE FAITH: A MODEL LOCAL ETHICS LAW-CONTENT AND COMMENTARY Mark Daviest I. Introduction The model local ethics law and accompanying commentary set forth in this Article reflect the work of the New York State Tempo- rary State Commission on Local Government Ethics. From 1990 through 1992, that agency was charged with enforcing the 1987 Ethics in Government Act, with aiding municipalities in addressing their ethics concerns, and with proposing new ethics legislation.' Dozens of investigations by the Temporary State Commission, during its three-year life, revealed a broad range of ethical problems in municipalities throughout New York State. With ade- quate staff and funding, the Commission could have conducted dozens if not hundreds of additional investigations-not because municipal officials often commit unethical acts, but because they are perceived to have committed unethical acts. In the Commis- sion's experience, a great chasm exists between the actual and per- ceived integrity of local government officials. Virtually none of the actions of officials investigated by the Commission violated current penal or ethics laws. Yet the public, perhaps justifiably, viewed those unregulated actions as improper. The Commission's determination that corrupt or illegal actions by officials occur with extreme infrequency at the local level is good news. The bad news is this: local government officials lack desperately needed counsel as to what behavior is ethically accept- able and what is not. t Mark Davies is the former Executive Director of the New York State Tempo- rary State Commission on Local Government Ethics and the former Deputy Counsel to the New York State Commission on Government Integrity. He is currently a prac- ticing attorney in Tarrytown, New York, and an Adjunct Professor of Law at Fordham University School of Law and New York Law School. 1. The 1987 Ethics in Government Act, 1987 N.Y. LAws 813, primarily regulates state officials. The provisions governing the Commission were codified in § 813 of the New York General Municipal Law. N.Y. GEN. MUN. LAW § 813 (McKinney 1986). See generally Temporary State Comm'n on Local Gov't Integrity, Final Report, 21 FORDHAM URB. L.J. 1 (1993). Page 124  FORDHAM URBAN LAW JOURNAL [Vol. XXI As discussed at length in the Commission's Final Report 2 and in its report entitled "In Search of a Wise Law: Municipal Ethics Law Reform,"' current New York State ethical standards for municipal officials are disgracefully inadequate. Most glaringly, they do not even contain a basic code of ethics to guide officials. As a result, neither officials nor citizens know what the rules are; the all-too- common result being that officials often face criticism for engaging in conduct that is permitted under current law. This appalling state of affairs, which exists not only in New York but in many other states as well, must be remedied with all deliberate speed. The Commission and its Local Government Advisory Board, which was composed of representatives of the New York State As- sociation of Counties, Association of Towns, and Conference of Mayors, proposed a state law to replace the hodgepodge of current ethics laws that govern municipal officials. 4 That bill was intro- duced in the New York State legislature in 1991 as Assembly Bill 8637 and Senate Bill 6157. It was not reported out of committee. II. The Need for Local Ethics Laws Absent a strong state ethics law for municipal officials, local gov- ernments must employ their home rule powers to enact a compre- hensive, local ethics law regulating the conduct of their officials. That a crushing need for a such a law exists is demonstrated by the Commission's investigations, which revealed the following in- 5 stances of questionable activity: Appearances and representation A town attorney appeared before the town planning board on behalf of private clients; A town board member represented developers before the town planning board; Compatibility of public office A municipal official held two, allegedly incompatible municipal offices; 2. Temporary State Comm'n on Local Gov't Integrity, supra note 1, at 1-62. 3. The report is unpublished and is on file with the Fordham Urban Law Journal. 4. The current state ethics law is set forth in article 18 of the New York State General Municipal Law. N.Y. GEN. MUN. LAW §§ 801-813 (McKinney 1986 & Supp. 1993). 5. See Temporary State Comm'n on LocalGov't Ethics, Final Report 4-6 (unpub- lished sections of the Report, on file with the Fordham Urban Law Journal). Page 125 19931 MODEL LOCAL ETHICS LAW Ineffective enforcement Town officials ignored, with impunity, the opinion of the Attorney General's office that a town planning-board member should refrain from voting on a matter in which he had an interest; Using public office for private gain A city housing services commission bought a city offi- cial's house at an allegedly inflated price; Municipal officials used municipal property for private purposes; Town planning board members .engaged in real estate trade iri the town; A town assessor acted as a private realtor and devel- oper in the town; A village mayor voted to rezone his son-in-law's prop- erty to permit a gas station; A town supervisor voted to award the town insurance contract to his brother-in-law; A school board trustee voted to raise the salary of his sister, the deputy board clerk; A town supervisor allegedly contracted with his father's bus company; A village trustee voted to grant permits to clients of her private consulting business; Zoning board members voted to grant variances to cli- ents of their private businesses; A city code-enforcement officer reviewed code compli- ance of his supervisor's private business; An industrial development authority (IDA) hired bond counsel who had an interest in an IDA project; A village board permitted a village golf superintendent to open a private pro shop on the village golf course; A town code-enforcement officer issued a building per- mit to himself; A town supervisor refused to correct a drainage prob- lem until the affected citizen took action that benefitted the supervisor's mother; Politicalsolicitation A city mayor solicited campaign contributions from city employees; Page 126  FORDHAM URBAN LAW JOURNAL [Vol. XXI A town commissioner of public works solicited cam- paign contributions from vendors on the town vendor list; A Democratic city mayor awarded city contracts to campaign contributors; Republican county officials awarded contracts to con- tributors of the county Republican committee; Improper influence of officials by private persons A private construction firm that needed town permits sought to hire the town supervisor; Revolving door A former town assessor appeared before the town's tax-grievance committee on behalf of persons whose property he had assessed; An IDA chair resigned to become the IDA's outside counsel, earning substantial fees; Inflexibility of current law A town board faced the dilemma of either contracting with a board member for recycling services, in violation of Article 18,6 or expending far more town money to con- tract with a vendor in another state; A village board was prevented from placing a service awards program before the voters because board mem- bers who were volunteer firefighters felt constrained to recuse themselves. Virtually none of the above actions are prohibited by current New York State law. Yet most citizens would regard them as im- proper. The state legislature having refused to enact a state ethics law for local government, each municipality must adopt its own ethics standards. Based on the bill jointly proposed by the Com- mission and its Local Government Advisory Board, the model lo- cal ethics law set forth below should assist municipalities in meeting that challenge. Ill. A Model Local Ethics Law: Content and Commentary Scope. The model local law is intended for use in New York State coun- ties, cities, towns, and villages. However, with minimal changes, it 6. N.Y. GEN. MUN. LAW §§ 801-13 (McKinney 1986 & Supp. 1993). Page 127 19931 MODEL LOCAL ETHICS LAW may be used in other municipalities, such as school districts. See, in particular, the Code of Ethics for the Buffalo Board of Educa- tion.7 With modification to comply with state law requirements, the model law may also be used in municipalities in other states. Authority to Enact. Section 806(1)(a) of the New York General Municipal Law re- quires all counties, cities, towns, villages, and school districts (and permits all other municipalities) to "adopt a code of ethics setting forth for the guidance of its of- ficers and employees the standards of conduct reasonably ex- pected of them. Such code shall provide standards for officers and employees with respect to disclosure of interest in legisla- tion before the local governing body, holding of investments in conflict with official duties, private employment in conflict with official duties, future employment and such other standards re- lating to the conduct of officers and employees as may be deemed advisable. Such codes may regulate or prescribe con- duct which is not expressly prohibited by this article [18] but may not authorize conduct otherwise prohibited. Such codes may provide for the prohibition of conduct or disclosure of in- formation and the classification of employees or officers."' Sections 806(1)(b) and 811 of the General Municipal Law specif- ically authorize municipalities to adopt a form of annual statement of financial disclosure. Financial disclosure is mandatory in coun- ties, cities, towns, and villages with a population of 50,000 or more.9 In light of a recent New York State Court of Appeals decision, 10 municipalities should exercise caution in unilaterally imposing eth- ics requirements on their unionized employees, as ethics require- ments may be found to be mandatory subjects of bargaining and, thus, not necessarily capable of unilateral imposition. MODEL LOCAL ETHICS LAW Section 1. Title. [If desired, assign a title to the local law, e.g.: "This local law shall be known and may be cited as the "Ethics Law of the [County, City, Town, or Village] of -. "I 7. Unpublished manuscript on file with the Fordham Urban Law JournaL 8. N.Y. GEN. MUN. LAW § 806(1)(a) (McKinney 1986). 9. N.Y. GEN. MUN. LAW §§ 810(1), 811(2), 812(1)(a) (McKinney Supp. 1993). 10. Board of Educ. v. New York State Pub. Employment Relations Bd., 75 N.Y.2d 660, 554 N.E.2d 1247, 555 N.Y.S.2d 659 (1990). Page 128 66 FORDHAM URBAN LAW JOURNAL [Vol. XXI Section 2. Purpose. The purposes of this local law are: (a) To establish high standards of ethical conduct for of- ficers and employees of the [County, City, Town, or Village]; (b) To afford officers and employees of the [County, City, Town, or Village] clear guidance on such standards; (c) To promote public confidence in the integrity of the governance and administration of the [County, City, Town, or Village] and its agencies and administrative offices; (d) By requiring public disclosure of financial interests that may influence or be perceived to influence the ac- tions of [County, City, Town, or Village] officers and em- ployees, to facilitate consideration of potential ethical problems before they arise, minimize unwarranted suspi- cion, and enhance the accountability of government to the people; and (e) To provide for the fair and effective administration of this local law. This local law is enacted pursuant to section 806 of the General Municipal Law of the State of New York and section 10 of the Mu- nicipal Home Rule Law and is not intended to authorize any con- duct prohibited by Article 18 of the General Municipal Law. This local law also supplements other provisions of law regulating ethics in local government, such as section 107 of the Civil Service Law of the State of New York. Section 2. Comment. While the vast majority of municipal officials are honest and zealous, being honest is not enough. Appearances and public per- ception play an enormously important role in the effectiveness of officials and in the well-being of their communities. However, ethics laws are not an academic exercise. Their pur- pose lies not in filing forms or in prohibiting officials' activity merely for prohibition's sake. To the contrary, proposals for ethics law reform must never be divorced from their impact upon the lives and effectiveness of the officials themselves. The point of ethics laws for municipal officials is to improve both the perception and the reality of integrity in local government and to encourage, not discourage, citizens from participating in that Page 129 1993] MODEL LOCAL ETHICS LAW government. If an ethics law fails in those goals, it fails in every- thing. This model local ethics law seeks to fulfill those goals. At the same time, it must comply with, and incorporate, the often con- fusing requirements of Article 18 of the General Municipal Law. Apart from Article 18, other New York State statutes, such as Civil Service Law section 107, regulate ethics in local govern- ment. 11 New York State common law also places certain restric- 12 tions on self-dealing by public officials. This model local ethics law primarily addresses conflicts between the public and private interests of municipal officials, and does not seek to regulate the compatibility of two public offices. The Attor- ney General, and to a lesser extent the Comptroller's office, have developed an extensive body of opinions on compatibility of public office,' 3 based on various statutory provisions.' 4 Section 3. Supersession of General Municipal Law § 808; Repeal of Existing [County, City, Town, or Village] Ethics Laws. To the extent this [chapter] is inconsistent with the provisions of section 808 of the General Municipal Law, this [chapter] shall su- persede those provisions. [Provide for the repeal of any existing local laws or ordinances governing ethics in the municipality that are rendered obsolete by this local law.] Section 3. Comment. As discussed below, both the Attorney General's office and the Commission have taken the position that municipalities' home rule powers permit them, by local law, to vary the provisions of section 808 of the General Municipal Law relating to the establishment 11. N.Y. Civ. SER. LAW § 107 (McKinney Supp. 1993): 12. See, e.g., Clarke v. Town of Russia, 283 N.Y. 272, 28 N.E.2d 833 (1940); Smith v. City of Albany, 61 N.Y. 444 (1875); People ex reL Schenectady Illuminating Co. v. Board of Supervisors, 166 A.D. 758, 151 N.Y.S. 1012 (App. Div. 1915). Cf N.Y. TOWN LAW § 271(3) (McKinney Supp. 1994); N.Y. VILLAGE LAW § 7-718(3) (McKin- ney Supp. 1994). 13. See, e.g., 1943 Op. Att'y Gen. 94; 1946 Op. Att'y Gen. 111; 7 Ops. St. Compt. 15 (1951). 14. See, e.g., N.Y. VILLAGE LAW § 3-300 (McKinney Supp. 1993); N.Y. SECOND CLASS CrrIEs LAW § 19 (McKinney Supp. 1993); N.Y. TOWN LAW § 20 (McKinney 1990 & Supp. 1993); N.Y. CourNY LAW § 411 (McKinney 1991); N.Y. GEN. CrrY LAW § 3 (McKinney 1989); N.Y. GEN. MUN. LAW §§ 239-b, 243, 553(4), 801, 856(4) (McKinney 1986); see also Strati v. Balancia, N.Y. LJ., May 23, 1991, at 28, col. 2 (Sup. Ct., Westchester Co. 1991) (upholding local law prohibiting town planning board members from running for town supervisor or town board). Page 130 68 FORDHAM URBAN LAW JOURNAL [Vol. XXI and membership of ethics boards. However, when adopting a local law changing or superseding any provision of a state statute or a prior local law or ordinance, the legislative body must specify the chapter or local law or ordinance (and the number and year of en- actment, section, subsection, or subdivision) that the legislative body intends to change or supersede, although the failure to do so 15 does not affect the validity of the local law. Section 4. Ethics Law. The following sections, numbered [100 through 218] are added to the [Unified Code of the County, City, Town, or Village of ]: Section 4. Comment. An ethics law rests upon a triad of provisions: an understanda- ble and comprehensive Code of Ethics, sensible disclosure, and a reasonable enforcement mechanism. Removal of any of those three legs topples the entire ethics structure. Furthermore, an unintelligible ethics law cannot be obeyed or enforced. This model law, therefore, places heavy emphasis upon easily understandable organization, contents, and word usage, par- ticularly in those provisions that directly affect the activities of offi- cials. An ethics law must be user friendly. Otherwise, it fails in its essential purpose of providing guidance to officials and confidence to citizens. For that reason, this model law is divided into two parts. The first part (sections 100-113) contains the provisions directly con- cerning the conduct of municipal officials. The second part (sec- tions 201-218) contains the provisions for administering the ethics law. Except for municipal attorneys and ethics board members, of- ficials would not often have occasion to consult the second part; the provisions of concern to officials are therefore grouped into the first fourteen sections of the model law. 15. N.Y. MUN. HOME RULE LAW § 22 (McKinney 1969). Page 131 19931 MODEL LOCAL ETHICS LAW ETHICS LAW PART A: SUBSTANTIVE PROVISIONS § 100. Code of Ethics for [County, City, Town, or Village] Officers and Employees. 1. General prohibition. A [County, City, Town, or Village] officer or employee shall not use his or her official position or office, or take or fail to take any action, in a manner which he or she knows or has reason to know may result in a personal financial benefit for any of the following persons: (a) the [County, City, Town, or Village] officer or employee; (b) his or her outside employer or business; (c) a member of his or her household; (d) a customer or client; (e) a relative; or (f) a person from whom the officer or employee has received election campaign contributions of more than $1000 in the aggre- gate during the past twelve months. 2. Recusal. A [County, City, Town, or Village] officer or employee shall promptly recuse himself or herself from acting on a matter before the [County, City, Town, or Village] when acting on the matter, or failing to act on the matter, may financially benefit any of the per- sons listed in subdivision 1 of this section. 3. Gifts. A [County, City, Town, or Village] officer or employee shall not solicit anything of value from any person who has received or sought a financial benefit from the [County, City, Town, or Vil- lage], nor accept anything of value from any person who the [County, City, Town, or Village] officer or employee knows or has reason to know has received or sought a financial benefit from the [County, City, Town, or Village] within the previous twenty-four months. 4. Representation. A [County, City, Town, or Village] officer or employee shall not represent any other person in any matter that person has before the [County, City, Town, or Village] nor represent any other per- Page 132  FORDHAM URBAN LAW JOURNAL [Vol. XXI son in any matter against the interests of the [County, City, Town, or Village]. 5. Appearances. A [County, City, Town, or Village] officer or employee shall not appear before any agency of the [County, City, Town, or Village], except on his or her own behalf or on behalf of the [County, City, Town, or Village]. 6. Confidential information. [County, City, Town, or Village] officers and employees and for- mer [County, City, Town, or Village] officers and employees shall not disclose any confidential information or use it to further any- one's personal interests. 7. Political solicitation. A [County, City, Town, or Village] officer or employee shall not knowingly request or knowingly authorize anyone else to request any subordinate of the officer or employee to participate in an election campaign or contribute to a political committee. 8. Revolving door. A [County, City, Town, or Village] officer or employee shall not appear or practice before the [County, City, Town, or Village], ex- cept on his or her own behalf, or receive compensation for working on any matter before the [County, City, Town, or Village], for a period of one year after the termination of his or her [County, City, Town, or Village] service or employment; however, the bar shall be permanent as to particular matters on which the [County, City, Town, or Village] officer or employee personally worked while in [County, City, Town, or Village] service. 9. Avoidance of conflicts. [County, City, Town, or Village] officers and employees shall not knowingly acquire, solicit, negotiate for, or accept any interest, em- ployment, or other thing of value which would put them in viola- tion of this Code of Ethics. 10. Inducement of others. A [County, City, Town, or Village] officer or employee shall not induce or aid another officer or employee of the [County, City, Page 133 19931 MODEL LOCAL ETHICS LAW Town, or Village] to violate any of the provisions of this Code of Ethics. § 100.-Comment. A Code of Ethics is the heart and soul of any ethics law. The Code must be easy for lay persons to understand and apply be- cause, as noted above, its primary purpose is to provide guidance to officials and citizens. The provisions of the Code of Ethics must be read together with the exclusions in section 102 and the definitions in section 105. Some municipalities may wish to include in their Code of Ethics certain additional provisions, such as a ban on all, or designated, officials holding offices in a political party or committee (a so- called "two hats" provision). Such a provision might read as follows: No [County, City, Town, or Village] officer or employee may be a member of a party committee, constituted committee, or duly constituted subcommittee of a county committee. "Party committee," "constituted committee," and "duly consti- tuted subcommittee of a county committee" are defined in section 14-100 of the Election Law and include, for example, state, county, city, town, and village political party committees. 16 Some munici- palities may wish to limit the two-hats provision to certain officials (e.g., policymakers) or to exclude certain officials (e.g., elected officials).' 7 § 100(1). This provision is the centerpiece of the Code of Ethics. It pro- hibits the official from taking any action that might financially ben- efit any of the listed persons. Sometimes inaction personally benefits an official or his or her close associates-for example, when a code enforcement officer fails to cite his or her brother for a zoning violation. For that reason, the provision also prohibits the official from refraining from acting. In either case, the official must recuse himself or herself pursuant to section 100(2). A municipality may wish to add additional categories of associ- ates or relatives to the list, such as brothers-in-law and sisters-in- 16. See N.Y. ELEC. LAW § 14-100 (McKinney Supp. 1993). 17. See, e.g., NEw YORK, N.Y., CHARTER § 2604(b)(15). The New York Court of Appeals upheld § 2604(b)(15) in Golden v. Clark, 76 N.Y.2d 618, 564 N.E.2d 611,563 N.Y.S.2d 1 (1990). Page 134 72 FORDHAM URBAN LAW JOURNAL [Vol. XXI law of the official, business associates of the official, employers of designated relatives of the official, partners of the official, creditors of the official, or persons from whom the official has received a substantial gift within the previous twelve months. With respect to the restriction on acting to benefit a campaign contributor (section 100(1)(f)), a municipality may wish to include contributions through a party committee or noncandidate political committee and may wish to expand the twelve month period to an election cycle. The municipality may also wish to adjust the $1,000 thresh- old in section 100(1)(f) to an amount appropriate in the particular community. § 100(2). This provision requires that the official entirely refrain from par- ticipating in the matter. Mere abstention from voting on the mat- ter is not sufficient. The official may not even discuss the matter with other officials. To emphasize the official's duty to divorce himself or herself completely from the matter, some municipalities may wish to add the phrase "formally or informally" between "from" and "acting." § 100(3). General Municipal Law § 805-a(1)(a) provides that: No municipal officer or employee shall.., directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, ser- vice, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reason- ably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the perform- ance of his official duties or was intended as a reward for any official action on his part .... At least one trial court has held that the above provision is uncon- stitutionally vague. 19 Any conduct prohibited by section 805-a(1)(a) would also be prohibited by the gift provision in the model law, even though sec- tion 805-a(1)(a), unlike the model law, contains no exemptions for gifts from parents, spouses, and children. 20 Such exemptions are implicit in the "reasonably be inferred" and "reasonably be ex- 18. N.Y. GEN. MUN. LAW § 805-a(1)(a) (McKinney Supp. 1993). 19. People v. Moore, 85 Misc. 2d 4, 377 N.Y.S.2d 1005 (Fulton County Ct. 1975). 20. N.Y. GEN. MUN. LAW § 805-a(1)(a) (McKinney Supp. 1993). Page 135 1993] MODEL LOCAL ETHICS LAW pected" language of section 805-a(1)(a). However, currently, no court has addressed this issue. The gifts provision in the model law prohibits acceptance of gifts only when the official "knows or has reason to know" the giver has received or sought a financial benefit from the municipality. The official is thus protected from inadvertently violating the law by accepting a gift from someone who the official could not have known did business with the municipality. Moreover, section 102 excludes awards from charitable organizations, gifts from parents, spouses, and children, gifts having an aggregate value of seventy- five dollars or less during the year, payments for performing cer- tain wedding ceremonies, and gifts accepted on behalf of the mu- nicipality and turned over to the municipality, e.g., the mayor's acceptance of a gift on behalf of his or her city from the mayor of a sister city. §§ 100(4) & 100(5). Section 805-a(1)(c) of the General Municipal Law prohibits offi- cials from receiving or agreeing to receive compensation for serv- ices to be rendered in relation to any matter before the official's own agency or before an agency over which the official has jurisdic- tion or to which he or she has the power to appoint someone.2 ' Section 805-a(1)(d) of the General Municipal Law prohibits offi- cials from receiving or agreeing to receive compensation for serv- ices to be rendered in relation to any matter before any agency of the municipality if the compensation is contingent upon any action by the agency with respect to the matter.2 2 The prohibition on con- tingent payment, however, does not prohibit the fixing of a non- contingent fee, at any time, based on the reasonable value of the services rendered. The above provisions fail to address many potential conflicts of interest. For example, although the provisions prohibit a town zon- ing board member from being paid to appear on behalf of a private client before the town zoning board, they do not prohibit the town attorney from appearing before the zoning board on behalf of a private client, nor would they prohibit the chair of the planning board, or even the code enforcement officer, from appearing before the zoning board for a private client. Sections 100(4) and (5) of the model law address such conflicts and completely incorpo- 21. N.Y. GEN. MUN. LAW § 805-a(1)(c) (McKinney Supp. 1993). 22. Id. § 805-a(l)(d). Page 136 74 FORDHAM URBAN LAW JOURNAL [Vol. XXI rate the restrictions contained in sections 805-a(1)(c) and (d) of the General Municipal Law. With respect to sections 100(4) and 100(5) of the model law, one might argue that any conduct prohibited by subdivision 5 (appear- ances) is also prohibited by subdivision 4 (representation). How- ever, because the restriction on appearances is probably easier to understand and enforce than the restriction on representation, both provisions should be included in the Code of Ethics. Some municipalities may find the municipal-wide bar on repre- sentations and appearances too broad and may, therefore, wish to restrict the bar to the official's own agency. However, such a nar- row bar would, for example, permit the town code-enforcement of- ficer or the town attorney to represent private clients before the town planning board because those officers are not employees of that agency. The broader prohibition or, at the very least, a prohi- bition that would prevent such abuses is therefore preferable. In addition, some municipalities may wish to preclude not only representation but also assistance or legal assistance, with an exclu- sion for representation or assistance in the performance of the of- ficer's or employee's official duties. The model law's exclusion for actions authorized by state or federal law (section 102(1)) would permit an official to represent or assist persons in an official capac- ity. Sections 102(6) and 102(7) specifically exclude the receipt of municipal services or benefits generally available to residents of the municipality and, in matters of public advocacy, the representa- tion of constituents by elected officials without compensation. The bar on representation and appearances does not prohibit an official from participating in the fee that his or her business associ- ate receives from such appearances or representation. Further- more, the only municipal agencies before which the official's business associate may not appear are the official's own agency and agencies over which the official exercises control (section 106). § 100(6). This provision is broader than General Municipal Law section 805-a(1)(b) because it applies to all confidential information, how- ever acquired, and prohibits use of confidential information to fur- ther anyone's personal interests.2 3 Confidential information may 23. 'N.Y. GEN. MUN. LAW § 805-a(1)(b) (McKinney Supp. 1993) ("No municipal officer or employee shall... disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests.") Page 137 1993] MODEL LOCAL ETHICS LAW be disclosed as permitted by law (section 102(1)), including the state whistleblower law.24 § 100(7). Political solicitation of subordinates by an official fosters the ap- pearance, if not the reality, of coercion. The Code of Ethics there- fore bars such solicitation, except from political appointees (see definition of "subordinate" in section 105(11)). Inclusion of the word "knowingly" means that neither an official nor his or her campaign committee need cull the names of munici- pal officials from voter registration lists. However, a targeted mail- ing to municipal officials would be prohibited. Some municipalities may wish to add a bar on soliciting from persons who have sought or received a financial benefit from the municipality within the previous twenty-four months. Municipali- ties may also wish to consider whether they should extend the bar of section 100(7) to nonincumbent candidates because appointed officials may fear reprisal if they refuse to, aid the campaign of a non-incumbent who later wins the election. Section 100(7) is not a little Hatch Act 25 and does not restrict voluntary political contributions or political activity by any offi- cial.26 The section merely prohibits an official from putting the political bite on a subordinate.27 § 100(8). Article 18 of the General Municipal Law contains no restrictions upon the activities of former municipal officials. Thus, a village planning board member may today vote to approve a major devel- opment and tomorrow go to work for the developer and even ap- pear before the planning board on that very same project. The revolving door provision in the model law restricts only the8 former official; it does not restrict his or her business associates. Thus, for example, a former mayor could not work on matters for or before his or her municipality for one year, but all of the mayor's colleagues in his or her new firm could. Section 100(8), 24. N.Y. CIV. SERV. LAW § 75-b (McKinney Supp. 1993). 25. 5 U.S.C. §§ 1501-1508 (1977 & Supp. 1993). 26. Cf N.Y. LAB. LAW § 201-d (McKinney Supp. 1994); N.Y. CIv. SERV. LAW § 27 (McKinney 1987). 27. See also N.Y. CIV. SERV. LAW § 107 (McKinney Supp. 1993). 28. See generally Forti v. New York State Ethics Comm'n, 554 N.E.2d 876 (N.Y. 1990) (upholding restrictions in section 73 of the Public Officers Law on former state executive branch employees appearing before their former agencies). Page 138 76 FORDHAM URBAN LAW JOURNAL [Vol. XXI however, does prohibit the former official from profiting from his or her associates' business with the municipality. 9 Moreover, section 100(8) only restricts appearances by the for- mer official on behalf of customers or clients. The official may ap- pear on his or her own behalf, for example, to seek a zoning variance for his or her own home. In addition, the revolving door provision does not apply to officials who performed only ministe- rial duties while in municipal service (section 102(8)). Under section 100(8), a business whose owner and sole em- ployee is a former official would be effectively barred for one year from appearing before the municipality on behalf of customers or clients. However, if that bar creates a particular hardship, the eth- ics board could grant a waiver under section 211. The revolving door bar extends for only one year, a period that is sufficiently long for the vast majority of municipalities. Those mu- nicipalities that need a longer bar may adopt it, but should bear in mind that the adoption of lengthy bars tends to discourage recruit- ment of qualified officials. Under the model law a lifetime bar applies to matters on which the former official personally worked while in municipal service. "Personally worked" means the official actually worked on the matter, not that he or she supervised a de- partment that worked on the matter. This revolving door provision is a municipal-wide bar. Some mu- nicipalities may wish to limit the bar to the former official's partic- ular agency. For the reasons set forth in the comments to section 100(4) above, such a narrow bar is not recommended. Section 100(8) would prohibit the municipality from hiring a for- mer official as an independent contractor. Some municipalities may, therefore, wish to include the phrase "or on behalf of the [County, City, Town, or Village]" after the phrase "except on his or her own behalf." However, such an exemption would permit sweetheart deals between the municipality and a former official, who would normally have the edge in competing with vendors lacking his or her municipal contacts. 29. To that extent, this model local ethics law restricts former officials more than current officials. That apparent anomaly, however, makes sense when one notes that former officials are subject only to the revolving door and confidential information provisions while current officials are subject to the entire panoply of restrictions in the Code of Ethics. Page 139 1993] MODEL LOCAL ETHICS LAW § 100(9). One might argue that this provision does not regulate any con- duct not otherwise regulated by the other provisions of the Code of Ethics. However, an avoidance of conflicts provision is common to many municipal codes of ethics around the country and provides an additional arrow in the Code of Ethics quiver. Municipalities finding the phrase "put them in violation" too col- loquial could change it to read "result in a violation." § 100(10). The model law prohibits a municipal official from inducing or aiding another municipal official to violate the Code of Ethics. For example, if a town board member and a member of the town zon- ing board jointly own a certain piece of property, the town board member could not ask the zoning board member to vote for a vari- ance for the property. § 101. Transactional Disclosure. 1. Whenever a [County, City, Town, or Village] officer or em- ployee is required to recuse himself or herself under the Code of Ethics set forth in section 100 of this [chapter], he or she (i) shall immediately refrain from participating further in the matter, (ii) shall promptly inform his or her superior, if any, and (iii) shall promptly file with the [County, City, Town, or Village] clerk a signed statement disclosing the nature and extent of the prohibited action or, if a member of a board, shall state that information upon the public record of the board. 2. An officer or employee shall not be required to file a disclo- sure statement pursuant to this section if he or she, with respect to the same matter, has filed with the [governing body of the county, city, town, or village] a disclosure statement complying with re- quirements of section 104 of this [chapter]. § 101.-Comment. Far more important than blunderbuss annual financial disclo- sure, transactional disclosure provides pinpoint disclosure when a conflict actually arises and should thus constitute the primary'focus of disclosure in any ethics scheme. Page 140  FORDHAM URBAN LAW JOURNAL [Vol. XXI Some municipalities may wish to replace "nature and extent of the prohibited action" with "reason for recusal," a less precise phrase. Section 803 of the General Municipal Law, which is incorporated in section 104(2) of the model law, requires disclosure of certain interests in contracts.3 0 To eliminate an official's need to file sepa- rate disclosure statements for the same transaction under both sec- tion 104 and section 101, section 101(2) exempts an official from having to file disclosure statements for the same transaction under both section 104 and section 101. § 102. Exclusions from the Code of Ethics and from Transactional Disclosure. The provisions of sections 100 and 101 of this [chapter] shall not prohibit, or require recusal or transactional disclosure as a result of: 1. An action specifically, authorized by statute, rule, or regula- tion of the state of New York or of the United States. 2. A ministerial act. 3. Gifts (a) received by the [County, City, Town, or Village] of- ficer or employee from his or her parent, spouse, or child; or (b) having an aggregate value of $75 or less during any twelve-month period; or (c) accepted on behalf of the [County, City, Town, or Village] and transferred to the [County, City, Town, or Village]. 4. Gifts or benefits having a value of $50 or less that are re- ceived by a [County, City, Town, or Village] officer or employee listed in section 11 of the Domestic Relations Law of the State of New York for the solemnization of a marriage by that officer or employee at a place other than his or her normal public place of business or at a time other than his or her normal hours of business. 5. Awards from charitable organizations. 6. Receipt of [County, City, Town, or Village] services or bene- fits, or use of [County, City, Town, or Village] facilities, that are generally available on the same terms and conditions to residents or a class of residents in the [County, City, Town, or Village]. 30. N.Y. GEN. MUN. LAW § 803 (McKinney 1986). Page 141 1993] MODEL LOCAL ETHICS LAW 7. Representation of constituents by elected officials without compensation in matters of public advocacy. 8. [County, City, Town, or Village] officers or employees ap- pearing or practicing before the [County, City, Town, or Village] or receiving compensation for working on a matter before the [County, City, Town, or Village] after termination of their [County, City, Town, or Village] service or employment where they per- formed only ministerial acts while working for the [County, City, Town, or Village]. § 102.-Comment. § 102(2). The village clerk may, for example, issue a fishing license to her brother. § 102(3). Some municipalities may also wish to exclude gifts from siblings because the model law would prohibit the sibling of an official from giving the official a wedding gift exceeding seventy-five dol- lars if the sibling sought or received a financial benefit from the municipality within the previous twenty-four months. However, such a situation would rarely occur. Moreover, where the situation did arise, the sibling could apply for a waiver from the ethics board. In view of the seventy-five dollar exclusion, little need would seem to exist for excluding attendance at a public social event, or attendance at a private social event (such as a dinner party) arising from normal hospitality with a value not exceeding, for example, $100. Such exclusions inject unnecessary ambiguity into a provi- sion that requires a bright line rule. §102(4). This provision tracks the exclusion in General Municipal Law section 805-b, which also defines a town or village judge's "normal hours of business" as "those hours only which are officially sched- 31 uled by the court for the performing of the judicial function. § 102 (5). Some municipalities may wish to restrict this exclusion some- what by adding the word "public" before "awards." 31. N.Y. GEN. MUN. LAW § 805-b (McKinney Supp. 1993). Page 142  FORDHAM URBAN LAW JOURNAL [Vol. XXI §102(6). As a resident of the municipality, an official should be able to receive from the municipality the same services and benefits as any other resident, provided that the official does not receive any pref- erential treatment. § 102(7). Elected officials are elected to serve their constituents. Thus, for example, when a resident complains to a town board member that the town highway department blocks the resident's driveway with snow, the board member must be able to pursue that complaint with the proper town authorities. The phrase "matters of public advocacy" may be replaced by "proper discharge of official duties," a phrase that appears in Pub- lic Officers Law section 73(7)(a), which regulates the business ac- tivities of state employees.32 § 102(8). The revolving door restrictions (section 100(8)) only apply to of- ficials with some discretionary authority. Employees who perform only ministerial actions are not subject to those restrictions. § 103. Inducement of Violations of the Code of Ethics. No person, whether or not a [County, City, Town, or Village] officer or employee, shall induce or attempt to induce a [County, City, Town, or Village] officer or employee to violate any of the provisions of sections 100 or 101 of this [chapter]. § 103.-Comment. Under current state law, absent outright bribery, the occasional dishonest private citizen or company that induces a municipal offi- cial to violate ethics laws runs no risk of penalty. For example, hoping to keep a village's business, a bank might give a personal loan to the village treasurer at a below-market interest rate. Quite possibly, the official will lose his or her job as a result, however, absent outright bribery, the bank will lose nothing. The Commission has repeatedly stressed that private citizens, vendors, developers, and providers must take some responsibility for municipal officials complying with ethics laws. The failure of current Article 18 to penalize private individuals and companies 2. N.Y. PUB. OFF. LAW § 73(7)(a) (McKinney 1988). Page 143 1993] MODEL LOCAL ETHICS LAW who induce a municipal official to violate ethics laws is unaccept- able. Three provisions in the bill, and in this model local ethics law, reflect this philosophy: (1) the prohibition against anyone, in- cluding a private person, inducing an official to violate the Code of Ethics (section 103); (2) the debarment provision (section 112); and (3) the applicant disclosure provision (section 108). Accordingly, section 103 applies to officials and nonofficials alike. § 104. Interests in Contracts with the [County, City, Town, or Village]. 1. Prohibited interests. No [County, City, Town, or Village] officer or employee shall have an interest in a contract with the [County, City, Town, or Vil- lage], or an interest in a bank or trust company, that is prohibited by section 801 of the General Municipal Law of the State of New York. Any contract willfully entered into by or with the [County, City, Town, or Village] in which there is an interest prohibited by that section shall be null, void, and wholly unenforceable, to the extent provided by section 804 of that law. 2. Discloseable interests. Any [County, City, Town, or Village] officer or employee who has, will have, or later acquires an interest in any actual or pro- posed contract with the [County, City, Town, or Village] shall pub- licly disclose the nature and extent of that interest in accordance with section 803 of the General Municipal Law. The clerk of the [governing body of the county, city, town, or village] shall cause a copy of that disclosure to be filed promptly with the Ethics Board. 3. Violations. Any [County, City, Town, or Village] officer or employee who willfully and knowingly violates the provisions of this section shall be guilty of a misdemeanor, to the extent provided by section 805 of the General Municipal Law. § 104.-Comment. The current prohibition against an official having an interest in a contract with the municipality in sections 801 and 802 of the Gen- eral Municipal Law is overly broad, difficult to enforce, and virtu- Page 144 82 FORDHAM URBAN LAW JOURNAL [Vol. XXI ally unintelligible to a lay person.33 In many small, rural communities, members of the legislative body, or other elected or appointed officials, may well own the only hardware store, gas sta- tion, or snow plowing service in the area. The municipality must then either ignore the prohibition against contracts with municipal officials or obtain the goods and services at a significantly higher price from distant vendors. (Under General Municipal Law Sec- tion 800(5), this prohibition applies to all municipal officials- whether paid or unpaid). The General Municipal Law's prohibition against interested con- tracts in section 801 functions as follows: it prohibits municipal of- ficers and employees from having an "interest" in a "contract" with the municipality if the officer or employee, individually or as a member of a municipal board, has some authority with respect to that contract-namely, the power or duty to negotiate, prepare, au- thorize, or approve the contract or payment under the contract or the power or duty to audit bills or claims under the contract or the power or duty to appoint someone who has any of those powers or duties. 34 (General Municipal Law section 801(2) establishes spe- cial requirements for fiscal officers and employees of municipalities). "Contract" is broadly defined in General Municipal Law section 800(2) to include not only express or implied agreements with the municipality but also claims, accounts, or demands against the mu- nicipality. 35 Thus, for example, a law suit against the municipality would be considered a "contract." Under General Municipal Law section 800(3), an official has an "interest" in a contract if he or she receives any "direct or indirect pecuniary or material benefit" as a result of the contract. 6 The official, therefore, does not need to be a party to the contract; he or she need only receive a financial benefit because of the contract. In addition, the official is deemed to have an interest in a contract of his or her family or outside business or employment.37 Section 802 then sets forth fifteen exceptions to these rules. 33. See N.Y. GEN. MUN. LAW §§ 801-802 (McKinney 1986). 34. N.Y. GEN. MUN. LAW § 801 (McKinney 1986). 35. N.Y. GEN. MUN. LAW § 800(2) (McKinney Supp. 1993). 36. Id. § 800(3). 37. Section 800(3) states: [A] municipal officer or employee shall be deemed to have an interest in the contract of (a) his spouse, minor children and dependents, except a contract of employment with the municipality which such officer or employee serves, (b) a firm, partnership or association of which such officer or employee is a Page 145 19931 MODEL LOCAL ETHICS LAW If the official has an interest in the contract and has the requisite power or duty with respect to that contract and if no exception applies, then that interest is prohibited. In that event, under sec- tion 804 of the General Municipal Law, the contract (if "willfully" entered into) is "null, void and wholly unenforceable"; and, under section 805, the official (if he or she "willfully and knowingly" vio- lated the restriction) is guilty of a misdemeanor. "Wilful" does not require knowledge that the contract violated the law but only knowledge of the facts that resulted in the violation.38 Where a prohibited interest in a contract exists, the official's disclosure of the interest and his or her abstention from participating in the mat- ter is to no avail; the contract is nonetheless void, and the official has committed a crime. Under section 803 of the General Municipal Law, where the offi- cial "has, will have, or later acquires" an interest in an actual or proposed contract with the municipality, he or she must publicly disclose in writing to the governing body of the municipality the nature and extent of that interest as soon as he or she has knowl- edge of it,39 unless the interest is exempted under section 802(2). Thus, the official must disclose an interest in a contract with his or her municipality even if the official lacks sufficient power or duty over the contract to render the interest prohibited and even if the interest is exempted under section 802(1). "Wilfully and know- ingly" failing to disclose an interest in a contract is a misdemeanor under section 805 of the General Municipal Law. Certain additional prohibited interest provisions apply in Nassau County under General Municipal Law section 804-a. § 105. Definitions. Unless otherwise stated or unless the context otherwise requires, when used in this [chapter]: 1. "Appear" and "appear before" mean communicating in any form, including, without limitation, personally, through an- other person, by letter, or by telephone. 2. "Customer or client" means (a) any person to whom a [County, City, Town, or Village] officer or employee has supplied member or employee, (c) a corporation of which such officer or employee is an officer, director or employee and (d) a corporation any stock of which is owned or controlled directly or indirectly by such officer or employee. Id. 38. Op. St. Compt. 85-9; see also Landau v. Percacciolo, 66 A.D. 2d 80, 412 N.Y.S.2d 378 (App. Div. 1978). 39. See N.Y. GEN. MUN. LAW § 803 (McKinney 1986). Page 146  FORDHAM URBAN LAW JOURNAL [Vol. XXI goods or services during the previous twenty-four months having, in the aggregate, a value greater than $1,000 or (b) any person to whom a [County, City, Town, or Village] officer's or employee's outside employer or business has supplied goods or services during the previous twenty-four months having, in the aggregate, a value greater than $1,000 but only if the officer or employee knows or has reason to know the outside employer or business supplied the goods or services. 3. "Ethics Board" means the Ethics Board of the [County, City, Town, or Village] of established pursuant to sec- tion 203 of this [chapter]. 4. "Gift" and "financial benefit" shall include any money, ser- vice, license, permit, contract, authorization, loan, travel, entertain- ment, hospitality, or any promise thereof, or any other gratuity or promise thereof or anything of value. A financial transaction may be a financial benefit but shall not be a gift unless it is on terms not available to the general public. "Gift" and "financial benefit" do not include campaign contributions authorized by law. 5. "Ministerial act" means an action performed in a pre- scribed manner without the exercise of judgment or discretion as to the propriety of the act. 6. "[County, City, Town, or Village]" means the [County, City, Town, or Village] of I but shall not include the [County, City, Town, or Village court]. 7. "[County, City, Town, or Village] officer or employee" means any officer or employee of the [County, City, Town, or Vil- lage], whether paid or unpaid, and includes, without limitation, all members of any office, board, body, advisory board, council, com- mission, agency, department, district, administration, division, bu- reau, or committee of the [County, City, Town, or Village]. "[County, City, Town, or Village] officer or employee" shall not include: (a) A judge, justice, officer, or employee of the unified court system; (b) A volunteer fire fighter or civil defense volunteer, except a fire chief or assistant fire chief; or (c) A member of an advisory board of the [County, City, Town, or Village] if, but only if, the advisory board has no authority to implement its recommendations or to act on behalf of the [County, City, Town, or Village] or to restrict the authority of the [County, City, Town, or Vil- lage] to act. No entity established pursuant to the Gen- Page 147 19931 MODEL LOCAL ETHICS LAW eral Municipal Law of the State of New York shall be deemed an advisory board for purposes of this paragraph. 8. "Outside employer or business" means: (a) any activity, other than service to the [County, City, Town, or Village], from which the [County, City, Town, or Village] officer or employee receives compensation for services rendered or goods sold or produced; (b) any entity, other than the [County, City, Town, or Village], of which the [County, City, Town, or Village] of- ficer or employee is a member, officer, director, or em- ployee and from which he or she receives compensation for services rendered or goods sold or produced; or (c) any entity in which the [County, City, Town, or Vil- lage] officer or employee has an ownership interest, ex- cept a corporation of which the [County, City, Town, or Village] officer or employee owns less than five percent of the outstanding stock. For purposes of this definition, "compensation" shall not include reimbursement for necessary expenses, including travel expenses. 9. "Person" shall include both individuals and entities. 10. "Relative" means a spouse, child, step-child, brother, sister, or parent of the [County, City, Town, or Village] officer or em- ployee, or a person claimed as a dependent on the [County, City, Town, or Village] officer's or employee's latest individual state in- come tax return. 11. "Subordinate" of a [County, City, Town, or Village] officer or employee shall mean another [County, City, Town, or Village] officer or employee over whose activities he or she has direction, supervision, or control, except those who serve in positions that are in the exempt classification under section 41 of the Civil Service Law of the State of New York or in the unclassified service under subdivisions (a) through (f) of section 35 of that law. § 105.-Comment. Although many ethics laws lead off with a section containing nu- merous and lengthy definitions, the Commission believed that the first section of an ethics law should be a code of ethics. Further- more, substantive provisions should not be buried in intricately drafted definitions. In particular, words in the code of ethics must not be so defined that they trap an unsuspecting official. Page 148 86 FORDHAM URBAN LAW JOURNAL [Vol. XXI The definitions in this model local law are kept to a minimum and do not add to the official's duties imposed by the plain mean- ing of the Code of Ethics. Rather, if anything, the definitions cut back on the official's duties as he or she would understand them to be upon reading the Code of Ethics. For example, the definition of "relative" only includes the immediate family, not cousins, uncles, or aunts. Thus, the official who reads the Code of Ethics, without consulting the definitions or exclusions, will in all likelihood view the Code of Ethics as more restrictive than it really is. This ap- proach protects the official from inadvertently violating the Code of Ethics. Some municipalities may wish to include additional definitions- for example, of "member of household" (section 100(1)(c)) or "political committee" (section 100(7)).40 § 105(2). An employee of a large corporation may not know many of the customers or clients of his or her employer and should not be pe- nalized for that understandable ignorance. For that reason, the "knows or has reason to know" language is included in the definition. § 105(4). "A financial transaction.., on terms not available to the general public" would include, for example, a reduced-interest loan to a municipal official. The reduction in interest would constitute a gift. § 105(6). As discussed under section 105(7) below, the model law excludes court officers and employees from its coverage. The definition of the municipality (county, city, town, or village) enacting the local ethics law expressly excludes the municipal court, thereby clarify- ing that the local ethics law does not apply to the local court. Thus, to the extent permitted by state regulations governing attorneys, a lawyer who is a town zoning board member could appear in the town justice court on behalf of a private client. So, too, the revolv- 40. "Member of household" might be defined as follows: "'Member of household shall mean any person with whom an officer or employee of the [County, City, Town, or Village] lives as a single household unit." Cf McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 488 N.E.2d 1240, 498 N.Y.S.2d 128 (N.Y. 1985). "Political committee" might be defined as follows: "'Political committee' shall have the meaning ascribed to that term in section 14-100 of the Election Law." Page 149 1993] MODEL LOCAL ETHICS LAW ing door provision would not restrict former municipal officials (e.g., assistant district attorneys or assistant county attorneys) from appearing before the local court after leaving municipal service. § 105(7). Like Article 18, the model law includes unpaid as well as paid officials. Indeed, at the municipal level it is the unpaid officials, such as zoning and planning board members, who often wield the greatest power. Except in the area of financial disclosure, Article 18 regulates not only executive and legislative officers and employees but also judicial officers and employees.41 The model law, however, ex- cludes judges and nonjudicial employees of the Unified Court Sys- tem. Accordingly, for example, the revolving door bar would not preclude a former court clerk from appearing before the munici- pality's zoning board immediately upon leaving municipal service. If the municipality feels that further clarification is needed in that regard, the following exclusion could be added to section 102: "Appearances by a former [County, City, Town, or Village] officer or employee in a court of the [County, City, Town, or Village]." Members of purely advisory boards are excluded from coverage by the Code of Ethics because those members are not "officers or employees" of the municipality. 42 § 105(8). Some municipalities may wish to lower the five percent thresh- old for publicly traded stock. Other municipalities may wish to re- quire disclosure of an official's interest in a corporation that exceeds a specific value, such as $25,000, even if the official owns less than five percent of the stock in that corporation. Some mu- 41. N.Y. GEN. MUN. LAW §§ 800(5), 810(2), 810(3) (McKinney Supp. 1993). 42. Cf. ASPCA v. Board of Trustees of State Univ. of N.Y., 184 A.D.2d 508, 584 N.Y.S.2d 198 (App. Div. 1992) (holding that SUNY Laboratory Animal Users' Com- mittee was not "performing a governmental or proprietary function for the state" within the meaning of the Freedom of Information Law, N.Y. Pun. OFF. LAW §§ 84- 90 (McKinney Supp. 1993)); ASPCA v. Board of Trustees of State Univ. of N.Y., 165 A.D. 561, 568 N.Y.S.2d 631 (App. Div. 1991), affd on other grounds, 79 N.Y.2d 927, 591 N.E.2d 1169, 582 N.Y.S.2d 983 (1992); Poughkeepsie Newspaper Div. of Gannet Satellite Info. Network v. Mayor's Intergov'tal Task Force on N.Y.C. Water Supply Needs, 145 A.D.2d 65, 537 N.Y.S.2d 582 (App. Div. 1989); Goodson Todman Enter., Ltd. v. Town Bd. of Milan, 151 A.D.2d 642, 542 N.Y.S.2d 373 (App. Div.), appeal denied, 547 N.E.2d 103 (1989) (all three cases holding that an advisory board meeting certain conditions is not a "public body" for purposes of the New York State Open Meetings Law, Public Officers Law §§ 100-111). Page 150 88 FORDHAM URBAN LAW JOURNAL [Vol. XXI nicipalities may wish to include debt as well as equity within the definition of "outside employer or business." Other municipalities may wish to extend the definition to noncompensated positions, such as the director of a nonprofit organization; however, munici- palities should exercise caution in that regard, lest the definition capture every religious, fraternal, and social affiliation of an official. § 105(10). "Relative" appears both in the general prohibition of the Code of Ethics (section 100(1)(e)) and in the annual disclosure require- ment (section 107(4)(a)). The definition is limited to the immedi- ate family. Some municipalities may wish to expand or contract that definition. § 105(11). The smooth functioning of government often requires, at least in large municipalities, ideological and political compatibility between elected officials and their senior staff. To prohibit officials from soliciting from such subordinates, who are inherently part of the political process, is simply unrealistic. Thus, the model law ex- cludes exempt employees and certain unclassified employees from the definition of subordinate. § 106. Appearances by Outside Employers and Businesses of [County, City, Town, or Village] Officers and Employees. 1. Except as provided in subdivision 3 of this section, the outside employer or business of a [County, City, Town, or Village] officer or employee shall not appear before the particular agency in which the [County, City, Town, or Village] officer or employee serves or by which he or she is employed. 2. Except as provided in subdivision 3 of this section, the outside employer or business of a [County, City, Town, or Village] officer or employee shall not appear before any other [County, City, Town, or Village] agency if the [County, City, Town, or Vil- lage] officer or employee has the authority to appoint any officer, employee, or member of the agency or to review, approve, audit, or authorize any budget, bill, payment, or claim of the agency. 3. Nothing in this section shall be construed to prohibit the outside employer or business of a [County, City, Town, or Village] officer or employee from Page 151 19931 MODEL LOCAL ETHICS LAW (a) Appearing on its own behalf, or on behalf of the [County, City, Town, or Village], before a [County, City, Town, or Village] agency; (b) Seeking or obtaining a ministerial act; or (c) Receiving a [County, City, Town, or Village] service or benefit, or using a [County, City, Town, or Village] fa- cility, which is generally available to the public. § 106. - Comment. Article 18 contains no general prohibition on the employer or business of a municipal official appearing before the official's board or agency or before other agencies of the municipality over which the official has control. Thus, for example, a mayor's law firm could appear on behalf of a private client before the city coun- cil, so long as the mayor receives no compensation for that representation. 3 Section 106 of the model law would restrict such appearances. However, one must emphasize that under section 106 an official's private employer or business is only prohibited from appearing on behalf of a customer or client before the official's particular agency or before an agency over which the official exercises some control. The firm may appear before any other agency of the municipality. The firm may also appear before the official's own agency on be- half of the firm itself, for example, to obtain a zoning variance to expand its own office; however, in that event the official would still be required to recuse himself or herself under section 100(2). "Particular" is included before "agency" to clarify that "agency" includes only that unit within which the official has control. In ad- dition, the firm may appear before the official's agency on behalf of the municipality or to seek a ministerial action or to receive the same benefits available to anyone else in the community (section 106(3)). Some municipalities may wish to extend the ban on appearances by officials' firms to agencies with which the official is not associ- ated. However, prohibiting an official's outside firm or business from appearing before any agency of the municipality would effec- tively bar many professionals from serving on municipal boards. Furthermore, citizens' concerns over appearances by officials' firms before the municipality are met by a prohibition of such ap- 43. N.Y. GEN. MUN. LAW § 805-a(1)(c) (McKinney Supp. 1993). Page 152 90 FORDHAM URBAN LAW JOURNAL [Vol. XXI pearances before those agencies of the municipality over which the official has some control. § 107. Annual Disclosure. 1. Officers and employees required to file. Officers and employees holding the following job titles or posi- tions shall be required to file a signed annual disclosure statement: [Set forth the job titles or positions of all officers and employees required to file annual disclosure statements.] 2. Time and place for filing. Annual disclosure statements shall be filed with the Ethics Board: (a) Within 120 days after the effective date of this section; (b) Within 30 days after becoming subject to the re- quirements of subdivision 1 of this section; and (c) No later than May 15 of each year thereafter. 3. Changes in disclosed information. Within 30 days after a change in the information contained in his or her most recently filed annual disclosure statement, an officer or employee shall file a signed amendment to the statement indicating the change. 4. Contents of annual disclosure statement. The annual disclosure statement shall disclose: (a) The location of any real property within the [County, City, Town, or Village], or within one mile of the boundary of the [County, City, Town, or Village], in which the officer or employee, or his or her relative, has a financial interest. (b) With respect to each outside employer or business of the [County, City, Town, or Village] officer or employee: (i) Its name (if any); (ii) The nature of its business; (iii) Whether it is self employment, a sole proprie- torship, or an entity and, if an entity, what type of entity; (iv) The [County, City, Town, or Village] officer's or employee's relationship to it, such as owner, part- Page 153 1993] MODEL LOCAL ETHICS LAW ner, officer, director, member, employee, or shareholder. (c) With respect to each outside employer or business of the [County, City, Town, or Village] officer's or em- ployee's spouse, the information required by paragraph (b) of this subdivision. 5. Good faith efforts. Failure to disclose the information required by subdivision 4 of this section with respect to a [County, City, Town, or Village] of- ficer's or employee's spouse or other relative shall not constitute a violation of that subdivision if the officer or employee has made a good faith effort to obtain the information and if he or she also sets forth those efforts in his or her disclosure statement. § 107.-Comment. NOTE. COUNTIES, CITIES, TOWNS, AND VILLAGES WITH POPULATIONS OF 50,000 OR MORE MUST COMPLY WITH THE FINANCIAL DISCLOSURE REQUIREMENTS SET FORTH IN SECTIONS 810-813 OF THE GENERAL MUNICIPAL LAW. However appropriate lengthy annual financial disclosure state- ments may be for state employees, who are full time and relatively well paid, the imposition of such statements by state mandate upon local government officials is wholly inappropriate. Unlike state government, local government at the highest levels is essentially a volunteer government. Legislative bodies, zoning boards of ap- peal, planning boards, architectural review boards, community col- lege boards, and the like, are composed entirely of unpaid or minimally paid members. The grossly intrusive financial disclosure requirements in Article 18 have given annual disclosure a bad reputation. However, while far less significant than transactional disclosure, reasonable annual disclosure does fill an important, though limited, role in an ethics law. In particular, annual disclosure reveals potential conflicts of interest before they arise and thus alerts the official-and the citi- zenry-to those potential conflicts. Annual disclosure thereby pro- vides a check on transactional disclosure and protects officials by Page 154 92 FORDHAM URBAN LAW JOURNAL [Vol. XXI identifying potential ethical pitfalls, which the official can then take steps to avoid. 44 § 107(1). The local government ethics bill proposed by the Commission 45 would require disclosure by the following classes of officers and employees: (a) Elected officials; (b) Department heads and those authorized to act on their behalf (e.g., first deputies); (c) Officers and employees who hold policymaking posi- tions, including members of municipal boards, such as the planning and zoning boards; (d) Officials whose job descriptions or whose actual du- ties involve the negotiation, authorization, or approval of (i) Contracts, leases, franchises, revocable con- sents, concessions, variances, special permits, or licenses; (ii) The purchase, sale, rental, or lease of real prop- erty, personal property, or services, or a contract therefor; (iii) The obtaining of grants of money or loans; or 44. See generally Bertoldi v. Wachtler, 952 F.2d 656 (2d Cir. 1991) (per curiam) (upholding, against federal and state constitutional challenges, financial disclosure re- quirements of New York's Ethics in Government Act as applied to court clerks); Igneri v. Moore, 898 F.2d 870 (2d Cir. 1990) (holding that financial disclosure provi- sions of Public Officers Law § 73-a, as applied to political party chairs, do not violate constitutional right to privacy); Levison v. County of Orange, 186 A.D.2d 257, 588 N.Y.S.2d 330 (App. Div. 1992) (upholding county ethics board's refusal to grant em- ployee waiver of disclosure requirement); Watkins v. New York State Ethics Comm'n, 554 N.Y.S.2d 955 (Sup. Ct. 1990) (holding that financial disclosure provisions of Pub- lic Officers Law § 73-a, including requirements for financial disclosure by spouses, do not violate federal or state constitutional rights to privacy, free speech and free associ- ation, fourth amendment protection, equal protection, or the privilege against self- incrimination); Grygas v. New York State Ethics Comm'n, 554 N.Y.S.2d 779 (Sup. Ct. 1990) (rejecting claim that New York State Legislature, in violation of separation of powers provision of article III, section 1, of New York State Constitution, delegated to state agencies, and to State Ethics Commission, authority to determine which state employees are "policy makers" for purpose of financial disclosure, without meaning- ful standards and guidelines); Twelve Assistant Dist. Attorneys v. Nassau County Bd. of Ethics, N.Y. L.J., Nov. 12, 1991, at 35 (upholding local board of ethics' denial of assistant district attorneys' request for exemptions from filing financial disclosure statements, even though filers were not policymakers). 45. See Temporary State Comm'n on Local Gov't Integrity, supra note 1 at 26 (Appendix L). Page 155 19931 MODEL LOCAL ETHICS LAW (iv) The adoption or repeal of any rule or regula- tion having the force and effect of law. The above categories are taken from sections 810(2), 810(3), 812(1), and 813(9)(k) of the General Municipal Law. Municipali- ties subject to mandatory financial disclosure under section 811 of that law must require, at a minimum, annual disclosure by those types of officials, although such municipalities may, if they desire, require disclosure by additional types of officials. Municipalities not subject to mandatory annual financial disclosure under current Article 18 may wish to expand or contract the above list. For ex- ample, some municipalities might wish to add candidates for local elected office or local political party leaders.46 For clarity, a municipality's local ethics law should set forth the job titles or positions of the officials required to file annual disclo- sure statements. § 107(2). Municipalities may wish to include different deadlines. The specified date of May 15 occurs a month after most officials' in- come tax returns are due and should provide adequate time for an official to file. § 107(3). Some persons fear that this requirement may trap officials who simply forget to file an amendment when, for example, they sell real property they own. On the other hand, absent such a require- ment, a disclosure statement may rapidly become outdated. § 107(4). WARNING: THESE DISCLOSURE REQUIREMENTS DO NOT COMPLY WITH CURRENT STATE LAW FOR COUNTIES, CITIES, TOWNS, AND VILLAGES WITH A POPULATION OF 50,000 OR MORE. A DISCLOSURE FORM COMPLYING WITH THOSE REQUIREMENTS IS SET FORTH IN APPENDIX A Annual disclosure requirements differ widely throughout the country. The requirements set forth in the model law will suffice in all but the largest municipalities in the state because the vast ma- jority of conflicts of interest arise either with respect to the offi- 46. See N.Y. GEN. MUN. LAW § 812(1)(a) (McKinney Supp. 1993). Page 156 94 FORDHAM URBAN LAW JOURNAL [Vol. XXI cial's real property ("May I vote to make the land adjoining my brother's home a park?") or with respect to the official's nonmu- nicipal business or employment.47 Numerous discussions and public hearings during the Commis- sion's tenure revealed virtually no opposition to disclosure of the information required by section 107(4), precisely because that in- formation is relevant to the duties of the officials. Furthermore, all of the information requested by section 107(4) is a matter of public knowledge, although it is not otherwise collected in one place. Ethics boards have the authority to subpoena additional informa- tion from the official if necessary (section 209(1)). They also have the power under section 211 to grant waivers from filing or from disclosing certain information on the annual disclosure statement in the rare instances in which such filing or disclosure proves intru- sive or dangerous (e.g., the home address of certain law enforce- ment officials in a large city). Section 107(4)(a) requires disclosure of the location of the real property of the official and of his or her spouse, brothers, sisters, parents, children, and dependents. Those relatives are included be- cause of the significant appearance of impropriety that results when actions of an official benefit his or her relative's real prop- erty. However, officials need not disclose the nonmunicipal busi- ness or employment of their parents, children, or siblings (section 107(4)(b)-(c)). Real property "within one mile of the boundary of the [municipality]" should be disclosed because an official's actions not infrequently affect property in the neighboring community. In the event an official, after a good faith effort, is unable to obtain the required information from an estranged spouse or other rela- tive, the official need Only set forth those efforts in the disclosure statement; he or she need not review land records (section 107(5)). (Some municipalities may wish to replace the good faith effort pro- vision with a requirement that an official who lacks the requested information about his relative need only so state under oath or by affirmation subject to the penalties of perjury.) The model law does not require disclosure of any financial data, such as the amount of income an official receives from nonmunici- pal business or employment. As the Commission often remarked, disclosure of financial data serves little purpose because a conflict 47. A sample disclosure form complying with the requirements of section 107(4) is set forth in Mark Davies, 1987 Ethics in Government Act: FinancialDisclosure Provi- sionsfor Municipal Officials and Proposalsfor Reform, 11 PACE L. REV. 243, 269-272 (1990) (Appendix B: Annual Statement of Financial Disclosure). Page 157 19931 MODEL LOCAL ETHICS LAW is a conflict, whether it involves $500 or $5,000. Furthermore, offi- cials strenuously object to disclosing their finances; the financial disclosure requirements of Article 18, mandatory for the munici- palities with populations of 50,000 or more, have already caused the resignation of over 200 officials around the state.48 Finally, under Article 18, financial data must be redacted before the disclo- sure statement can be shown to the public; 49 redaction substantially increases the administrative burden and expense of administering an ethics law. Some municipalities may feel the need to require disclosure of additional information, such as creditors or debtors of the official, and such as persons from whom the official has received a gift in excess of a specified amount during the year covered by the filing. Some municipalities may wish to vary the type and amount of dis- closure according to the nature of the official's duties or according to whether the official is paid or unpaid. However, many volunteer board members, such as members of planning and zoning appeal boards, have extensive authority at the local level and should, therefore, be required to file some form of annual disclosure statement. The text of the disclosure form should not be included in the local law, lest every minor clarification in the form require a new local law. § 108. Applicant Disclosure: Generally. 1. Where a person requests the [County, City, Town, or Vil- lage] or a [County, City, Town, or Village] officer or employee to take or refrain from taking any action (other than a ministerial act) that may result in a financial benefit both to the requestor and to either any officer or employee of the [County, City, Town, or Vil- lage] or one of the other persons listed in subdivision 1 of section 100 of this [chapter], the requestor shall disclose the names of any such persons, to the extent known to the requestor at the time of the request. 2. If the request is made in writing, the disclosure shall accom- pany the request. If the request is oral and made at a meeting of a public body, the disclosure shall be set forth in the public record of the body. If the request is oral and not made at a meeting. of a 48. See Temporary State Comm'n on Local Gov't Ethics, Final Report 9 (unpub- lished section of the Report, on file with the Fordham Urban Law Journa!).. , 1 49. See N.Y. GEN. MUN. LAW § 813(18)(a)(1) (McKinney 1988 & Supp. 1993); N.Y. PUB. OFF. LAW § 89(2)(a) (McKinney 1988). Page 158  FORDHAM URBAN LAW JOURNAL [Vol. XXI public body, the disclosure shall be set forth in a writing filed with the [County, City, Town, or Village] clerk. 3. A person shall not be required to file a disclosure statement pursuant to this section if he or she, with respect to the same mat- ter, has filed a disclosure statement complying with requirements of section 109 of this [chapter]. § 108.-Comment. This section is the second of three provisions in this model local ethics law, reflecting the view that private citizens and companies must share responsibility for officials complying with ethics laws. Article 18 requires applicant disclosure only in connection with land use applications; that requirement is reflected in section 109 of this model law. Section 108 broadens applicant disclosure to all instances in which the applicant is requesting the municipality to act (or refrain from acting) on a matter in which any official of the municipality, or his or her family, business, customers, or clients, may have a financial interest. For example, an applicant for a zon- ing variance would be required to list the names of any officer or employee of the municipality who might financially benefit from the granting of the application. Applicant disclosure provides a check on transactional and an- nual disclosure; together, these three types of disclosure form the disclosure triad in this model law. Section 108 does not require the applicant to research which officials, if any, have an interest in the matter, but only requires the applicant to disclose the names of interested officials to the extent the applicant knows them. Also, the section imposes no burden on the applicant to update the dis- closure if the applicant later learns that certain officials have an interest in the application. To avoid imposing too great a burden on applicants, section 108 only requires applicant disclosure when the application financially benefits the applicant, for example, a zoning variance for the appli- cant's home. Thus, for example, no applicant disclosure would be required by a developer who offers to donate as parkland a lot immediately across the street from the building inspector's home. Some municipalities may, therefore, wish to delete the requirement in section 108 that the requested action result in a financial benefit to the requester. To obviate the necessity of an applicant having to file one disclo- sure statement under section 108 and another one under section 109 for the same application, section 108(3) exempts an official Page 159 19931 MODEL LOCAL ETHICS LAW who files a statement under section 109 from filing one under sec- tion 108. § 109. Applicant Disclosure: Land Use Applications. 1. Disclosure. Every application, petition, or request submitted for a variance, amendment, change of zoning, applroval of a plat, exemption from a plat or official map, license, or permit, pursuant to the provisions of any ordinance, local law, rule, or regulation constituting the zon- ing and planning regulations of the [County, City, Town, or Vil- lage] shall state the information required, to the extent required, by section 809 of the General Municipal Law of the State of New York. 2. Violations. Any person who willfully and knowingly violates the provisions of this section shall be guilty of a misdemeanor, to the extent pro- vided by section 809 of the General Municipal Law. § 109.-Comment. As noted above, this section reflects the requirements of section 809 of the General Municipal Law. It is not contained in the bill proposed by the Commission and Advisory Board because its pro- visions are sufficiently covered by section 108 of the bill. § 110. Void Contracts. Any contract or agreement entered into by or with the [County, City, Town, or Village] which results in or from a violation of any provision of sections 100, 101, or 106 of this [chapter] shall be void unless ratified by the [governing body of the county, city, town, or village]. Such ratification shall not affect the imposition of any criminal or civil penalties pursuant to this [chapter] or any other provision of law. § 110.-Comment. Some municipalities have opted for a provision making a tainted contract voidable by the municipality's ethics board. Such an ap- proach rewards inaction. Therefore, this model law makes a con- tract entered into in violation of the ethics law void unless ratified by the municipality's governing body. Under the Open Meetings Page 160 98 FORDHAM URBAN LAW JOURNAL [Vol. XXI Law, such ratification would have to be done in a public meeting 50 after public notice. The model local ethics law gives the governing body of the mu- nicipality, rather than the ethics board, the authority to ratify the contract, because the governing body is better able to evaluate whether the contract is in the best interests of the municipality. Ratification of the contract does not prevent the imposition of pen- alties upon any person whose ethical improprieties caused the con- tract to be tainted. Moreover, section 110 does not apply to contracts prohibited by section 801 of the General Municipal Law (incorporated into section 104 of this model local law); such con- tracts may not be ratified. § 111. Penalties. 1. Disciplinary action. Any [County, City, Town, or Village] officer or employee who engages in any action that violates any provision of this [chapter] may be warned or reprimanded or suspended or removed from of- fice or employment, or be subject to any other sanction authorized by law or collective bargaining agreement, by the appointing au- thority or person or body authorized by law to impose such sanc- tions. A warning, reprimand, suspension, removal, or other authorized sanction may be imposed in addition to any other pen- alty contained in this [chapter] or in any other provision of law. 2. Civil fine. Any [County, City, Town, or Village] officer or employee who violates any provision of this [chapter] may be subject to a civil fine of up to $1,500 for each violation. A civil fine may be imposed in addition to any other penalty contained in any other provision of law or in this [chapter], other than a civil forfeiture pursuant to subdivision 4 of this section. A civil fine may not be imposed for a violation of section 104 of this [chapter]. 3. Damages. Any person, whether or not a [County, City, Town, or Village] officer or employee, who violates any provision of this [chapter] shall be liable in damages to the [County, City, Town, or Village] for any losses or increased costs incurred by the [County, City, 50. N.Y. PUB. OFF. LAW §§ 103(a), 104 (McKinney 1988). Page 161 19931 MODEL LOCAL ETHICS LAW Town, or Village] as a result of the violation. Such damages may be imposed in addition to any other penalty contained in any other provision of law or in this [chapter], other than a civil forfeiture pursuant to subdivision 4 of this section. 4. Civil forfeiture. Any person, whether or not a [County, City, Town, or Village] officer or employee, who intentionally or knowingly violates any provision of this [chapter] may be subject to a civil forfeiture to the [County, City, Town, or Village] of a sum equal to.three times the value of any financial benefit he or she received as a result of the conduct that constituted the violation. A civil forfeiture may be imposed in addition to any other penalty contained in any other provision of law or in this [chapter], other than a civil fine pursuant to subdivision 2 or damages pursuant to subdivision 3 of this sec- tion. Civil forfeiture shall not be available for a violation of section 104 of this [chapter]. 5. Misdemeanor. Any person, whether or not a [County, City, Town, or Village] officer or employee, who intentionally or knowingly violates any provision of this [chapter] shall be guilty of a class A misdemeanor and, upon conviction thereof, if a [County, City, Town, or Village] officer or employee, shall forfeit his or her [County, City, Town, or Village] office or employment. This subdivision shall not apply to a violation of section 104 of this [chapter]. § lll.-Comment. Aside from criminal penalties-and seldom should an ethics vio- lation be classified as criminal-few penalties exist for violation of Article 18. Indeed, except in the financial disclosure context, a vio- lation of Article 18 is either a misdemeanor or is punishable only by disciplinary action. By contrast, the model law provides an ap- propriate range of penalties for ethical improprieties. The authority for the adoption of these penalties rests upon the Municipal Home Rule Law, which empowers municipalities [t]o provide for the enforcement of local laws by legal or equita- ble proceedings which are or may be provided or authorized by law, to prescribe that violations thereof. shall constitute misde- meanors, offenses or infractions and to provide for the punish- Page 162 100 FORDHAM URBAN LAW JOURNAL [Vol. XXI ment of violations thereof by civil penalty, fine, forfeiture or imprisonment, or by two or more of such punishments .... 51 § 111(1). The appointing authority, which, as a general rule, has the power to remove appointed officials, must be given the power to impose disciplinary action. The ethics board only recommends such action. § 111(2). Under sections 811(1)(c) and 813(13) of the General Municipal Law, a municipality may prescribe civil fines of up to $10,000 for knowingly and wilfully failing to file an annual statement of finan- cial disclosure or for knowingly and wilfully making a false state- ment with intent to deceive or giving information on a financial 52 disclosure statement that the reporting official knows to be false. The model law provides for a maximum fine of $1,500, which will normally be sufficient. However, a provision for a $10,000 fine is required in those municipalities subject to mandatory financial dis- closure under section 811(2) of the General Municipal Law. 53 The model law exempts violations of section 104 (prohibited in- terests in contracts) from the civil fine provision because such ac- tivity constitutes a misdemeanor under section 805 of the General Municipal Law and because such activity should not be prohibited but should merely require disclosure and recusal. (Such violations are not exempted from subdivision 1 (disciplinary action) because any official who commits a crime should be subject to disciplinary action.) Finally, to avoid unfairness and possible claims of confiscation, the model law precludes imposition of both a civil fine and a civil forfeiture. § 111(3). A municipality may not by local law create a new cause of ac- tion. This provision merely recognizes the municipality's right to obtain damages from an official whose unlawful acts have resulted in loss to the municipality. For that same reason, this provision does not exempt a violation of section 104. 51. N.Y. MUN. HOME RULE LAw § 10(4)(b) (McKinney 1969). 52. See N.Y. GEN. MUN. LAw §§ 811(1)(c), 813(13) (McKinney Supp. 1993). 53. See id. § 811(2). Page 163 1993] MODEL LOCAL ETHICS LAW § 111 (4). For the reasons set forth under subdivision (2) above, violations of section 104 are excluded from this provision as well. § 111 (5). Since a violation of section 104 is subject to the separate misde- meanor provision of section 805 of the General Municipal Law, as incorporated in section 104 of this model law, such violations are excluded from this provision. § 112. Debarment. 1. Any person, whether or not a [County, City, Town, or Vil- lage] officer or employee, who intentionally or knowingly violates any provision of this [chapter] shall be prohibited from entering into any contract with the [County, City, Town, or Village] for a period not to exceed three years, as provided in subdivision 5 of section 210 of this [chapter]. Debarment may not be imposed for a violation of section 104 of this [chapter]. 2. No person, whether or not a [County, City, Town, or Village] officer or employee, shall enter into a contract in violation of a bar imposed pursuant to subdivision 1 of this section. 3. Nothing in this section shall be construed to prohibit any person from receiving a service or benefit, or from using a facility, which is generally available to the public. 4. Under this section, a corporation, partnership, or other en- tity shall not be held vicariously liable for the actions of an em- ployee. A corporation, partnership, or other entity shall not be debarred because of the actions of an employee unless the em- ployee acted in the execution of company policy or custom. A store, region, division, or other unit of an entity shall not be debar- red because of the actions of an employee of that unit unless the employee acted at the direction, or with the actual knowledge or approval, of the manager of the unit. § 112.-Comment. This section is the third of three provisions in the bill, and in this model local ethics law, reflecting the view that private citizens and companies must share responsibility for officials complying with ethics laws. Simply stated, debarment means that anyone who in- tentionally or knowingly violates a provision of the model law, in- cluding a private business that induces a municipal official to Page 164 102 FORDHAM URBAN LAW JOURNAL [Vol. XXI violate the Code of Ethics, may be prohibited from doing business with the municipality for a period not to exceed three years. That penalty would be imposed by the court in a proceeding initiated by the governing body of the municipality or its ethics board (section 210(5)). Although no court has ruled on the issue, a municipality may enact this provision under the municipality's home rule powers, provided that the provision limits the debarment to doing business with the particular municipality. Section 112 excludes from debarment violations of section 104 (prohibited interests in contracts) for the reasons set forth in the discussion of section 111 above. Section 112(4) has been added to address a concern of the busi- ness community that debarment might be imposed against an en- tire corporation for the illicit and unauthorized acts of an individual employee in one division or corporate subsidiary. Under this provision, a store or division of a corporation could be debarred if the manager of that store or division directed or actu- ally knew or approved of the ethics violation; however, the corpo- ration itself could not be debarred unless the employee's actions 54 reflected corporate (not store or divisional) policy or custom. § 113. Injunctive Relief. 1. Any resident, officer, or employee of the [County, City, Town, or Village] may initiate an action or special proceeding, as appropriate, in the court of appropriate jurisdiction for injunctive relief to enjoin an officer or employee of the [County, City, Town, or Village] from violating this [chapter] or to compel an officer or employee of the [County, City, Town, or Village] to comply with the provisions of this [chapter]. In lieu of, or in addition to, injunc- tive relief, the action or special proceeding, as appropriate, may seek a declaratory judgment. 2. No action or special proceeding shall be prosecuted or main- tained pursuant to subdivision 1 of this section, unless (a) the plain- tiff or petitioner shall have filed with the Ethics Board a sworn complaint alleging the violation by the officer or employee, (b) it shall appear by and as an allegation in the complaint or petition filed with the court that at least six months have elapsed since the 54. The phrase "policy or custom" is taken from Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691-92 (1978) (holding that a municipality can be found liable under 42 U.S.C. § 1983 only when execution of a government policy or custom inflicts the injury and that vicarious liability does not apply under § 1983). Page 165 1993] MODEL LOCAL ETHICS LAW filing of the complaint with the Ethics Board and that the Ethics Board has failed to file a determination in the matter, and (c) the action or special proceeding shall be commenced within ten months after the alleged violation occurred. § 113.-Comment. Allegations of unethical conduct raise sensitive questions that cannot be left unresolved. This section addresses the failure of an ethics board to act on a matter before it. If, however, an ethics board does act within the period prescribed by subdivision 2, the remedy of the aggrieved party (the official or the complainant) lies not in section 113 but in a proceeding under Article 78 of the New York State Civil Practice Law and Rules5 5 to review the board's determination (see section 213). (Where the ethics board files a determination in the matter after the section 113 suit has been commenced, the matter should proceed as an Article 78 proceed- ing to review that determination, provided that the petitioner is aggrieved by it.) Section 113 expressly acknowledges the right of a citizen or offi- cial to seek the aid of the court in compelling an official to comply with ethics laws or in determining what obligations those laws im- pose where the ethics board has failed to act on a complaint within six months.5 6 Absent that six-month cap, the matter might be left unresolved for a year or more. This provision does not relieve the plaintiff or petitioner of the usual requirements that he or she have standing to sue in the particular instance and that, in an action for declaratory judgment, an actual controversy exist between the par- ties. Furthermore, before bringing the lawsuit, the plaintiff or peti- tioner must exhaust the administrative remedies set forth in subdivision two, a requirement necessitated by the excessive cost the municipality might otherwise incur as a result of repeated lawsuits. Section 113 only applies where the plaintiff or petitionerhas filed a sworn complaint with the ethics board. The section does not ad- dress the concern of an official against whom the complaint has been made or of whom an ethics board, on its own initiative, has undertaken an investigation. (But see discussion of section 212 below.) Some municipalities may wish to replace "file" with "issue." 55. N.Y. CIv. PRAC. L. & R. §§ 7801-7806 (McKinney 1981 & Supp. 1993). 56. Cf. N.Y. GEN. MUN. LAW § 51 (McKinney 1989). Page 166 104 FORDHAM URBAN LAW JOURNAL [Vol. XXI PART B: ADMINISTRATIVE PROVISIONS Comment. As noted above, this, the second part of the model law, contains the provisions for administering the law (sections 201-218). Gener- ally, only the municipal attorney and the members of the ethics board will need to consult this part. Duties of Municipal Clerk. Prior to January 1, 1991, section 806(3) of the General Municipal Law required the municipal clerk to file certain documents with the state Comptroller.5 7 Beginning January 1, 1991, the clerk was to file those documents with the Commission. With the termina- tion of the Commission on December 31, 1992, the clerk must file only one of those documents with the state. However, the clerk must maintain a copy of the other documents on file for public inspection. These various documents are: (1) A copy of the municipality's code of ethics and amendments thereto (under section 806, codes of ethics are mandatory for counties, cities, towns, villages, and school districts); (2) A statement that the municipality has established an ethics board and the composition of the board (under sec- tion 808, an ethics board is optional); (3) A copy of the form of annual statement of financial disclosure, if any, adopted by the municipality pursuant to General Municipal Law section 811; (4) A copy of either: (i) a statement that the municipality is not subject to mandatory annual financial disclosure under Arti- cle 18 because it is not a county, city, town, or village having a population of 50,000 or more; or (ii) a statement that the municipality, though sub- ject to annual financial disclosure, has failed to adopt an annual financial disclosure statement or to resolve to continue an existing statement and is thus subject to section 812; or (iii) a statement of the date on which the governing body of the municipality either adopted a form for an annual disclosure statement or resolved to continue 57. See id. § 806(3) (McKinney Supp. 1993). Page 167 19931 MODEL LOCAL ETHICS LAW an existing form for an annual disclosure statement; and (5) A copy of the municipal clerk's annual report to the legislature stating whether the municipality has a code of ethics in effect as of the date the report is filed. Of those five documents, the clerk need only file item (5)-the an- nual report-with the state. The filing deadline is February 15. A one-sentence letter will suffice ("As of the date set forth above, the [County, City, Town, or Village] of - has [or does not have] in effect a code of ethics within the meaning of section 806 of the General Municipal Law"). ,§ 201. Designation of Officers and Employees Required to File Annual Disclosure Statements. Within 90 days after the effective date of this local law, and dur- ing the month of March each year thereafter, the [chief executive officer or, if none, the chair of the governing body] of the [County, City, Town, or Village] shall: (a) Cause to be filed with the Ethics Board a list of the names and offices or positions of all [County, City, Town, or Village] officers and employees required to file annual disclosure statements pursuant to section 107 of this [chapter]; and (b) Notify all such officers and employees of their obli- gation to file an annual disclosure statement. § 201.-Comment. If the municipality does not have a chief executive officer, then the chair of the municipality's governing body should ensure that the list is compiled and the filers notified. § 202. Maintenance of Disclosure Statements. 1. The [County, City, Town, or Village] clerk shall transmit promptly to the Ethics Board each transactional and applicant dis- closure statement filed pursuant to sections 101, 104, 108, and 109 of this [chapter]. 2. The Ethics Board shall index and maintain on file for at least seven years all disclosure statements filed with the Board pursuant to sections 101, 104, 107, 108, and 109. Page 168 106 FORDHAM URBAN LAW JOURNAL [Vol. XXI § 203. Ethics Board: Establishment; Qualifications of Members; Appointment of Members; Term of Office. 1. There is hereby established an Ethics Board consisting of five members. 2. No more than one member of the Ethics Board may be an appointed officer or employee of the [County, City, Town, or Vil- lage]. Of the total membership of the Board, no more than two shall be registered in the same political party. 3. No Ethics Board member shall hold office in a political party or be employed or act as a lobbyist or hold elective office in the [County, City, Town, or Village]. An Ethics Board member may make campaign contributions but may not participate in any elec- tion campaign. 4. Within 60 days after the effective date of this local law, and no later than December 31 each year thereafter, the [elective chief executive officer, with the advice and consent of the governing body of the county, city, town, or village, or, if there is no elective chief executive officer, the chair of the governing body of the county, city, town, or village] shall appoint the members of the Ethics Board. 5. The term of office of Ethics Board members shall be three years and shall run from January 1 through December 31, except that of the members first appointed one member shall serve until December 31 of the year in which the Board is established, two shall serve until the second December 31, and two shall serve until the third December 31. 6. An Ethics Board member shall serve until his or her succes- sor has been appointed. Consecutive service on the Ethics Board shall not exceed two full terms. 7. The members of the Ethics Board shall not receive compen- sation but shall be reimbursed for reasonable expenses incurred in the performance of their official duties. § 203.-Comment. Section 808 of the General Municipal Law contains provisions for the establishment and membership of ethics boards.5" How- ever, the Attorney General's office and the Commission have taken the position that municipalities' home rule powers permit them to vary those provisions by local law. 59 Thus, for example, 58. See N.Y. GEN. MUN. LAW § 808 (McKinney 1986 & Supp. 1993). 59. See Op. Att'y Gen. 86-44; Op. Att'y Gen. 91-68. Page 169 19931 MODEL LOCAL ETHICS LAW the municipality may establish an ethics board with no members who are officers or employees of the municipality. The local government ethics bill proposed by the Commission and its Advisory Board expressly recognized the right of munici- palities to form joint or regional ethics boards or to contract out their ethics board to another municipality pursuant to Article 5-G of the General Municipal Law. 6° Municipalities lacking the re- sources to establish an individual ethics board may wish to consider this option, to the extent permitted by current law. Indeed, section 808(2) of the General Municipal Law authorizes county ethics boards to render advisory opinions to officers and employees of municipalities wholly or partly within the county with respect to Article 18 or local ethics laws.61 Section 808(4) authorizes local ethics boards to refer matters to the county ethics board. 62 Thus, some cities, towns, and villages lacking their own ethics board may either have the county ethics board act as the ethics board for the city, town, or village, or have the county ethics board take referrals from the local ethics board. For example, a provision might read: "The Ethics Board, or the [governing body of the City, Town, or Village], may request the ethics board of the County of to investigate, hear, and determine a matter arising under this [chapter]." Section 203 of the model law provides for a five-member ethics board. Some municipalities may wish to establish a three, seven, or nine-member board instead. An even number of board members is inadvisable because of the increased risk of tie votes. In addition, because a municipal board may only act by the majority vote of its total authorized membership, 63 municipalities should not make an ethics board so large that frequent vacancies or frequent absences will occur. The terms of office of members should be staggered, to provide continuity in the work and philosophy of the board. Municipalities may wish to increase or decrease the length of the term of office or establish a different year of service than the calendar year. How- ever, terms of office should be sufficiently long to ensure the mem- bers acquire expertise but not so long as to discourage persons from serving on the board. In addition, ethics, board members 60. N.Y. GEN. MUN. LAW §§ 119-m to 119-o (McKinney 1986 & Supp. 1993). 61. See N.Y. GEN. MUN. LAW § 808(2) (McKinney 1986). 62. See id. § 808(4). 63. N.Y. GEN. CONSTR. LAW § 41 (McKinney 1951). Page 170  FORDHAM URBAN LAW JOURNAL [Vol. XXI should not be allowed to become entrenched on the board; the model law therefore contains a term limitation. A possible alternative provision on terms of office would be the following: The members of the Ethics Board shall be appointed for stag- gered terms of five years, commencing on July 1 and expiring on June 30, provided, however, that the first Ethics Board ap- pointed under this provision shall consist of five members ap- pointed for terms expiring respectively on June 30 of the first, second, third, fourth, and fifth calendar years following the cal- endar year of appointment. Upon expiration of each term, an appointment shall be made for the following five-year term. The restriction On municipal officials serving on the ethics board seeks to ensure that the board is as free as possible from pressure from other officials-co-workers and superiors alike. The restric- tion on the political make-up of the board aims to strengthen both the perception and the reality of a board that is nonpartisan. (Sub- division 2 of section 203 requires at least one member of the board to be registered in a third party or as an independent. Moreover, the restriction must be upon party registration not upon some vague criteria such as "political opinion on state and national is- sues."' ) Ethics boards must not become political footballs. For that same reason, the model law restricts the political activities of ethics board members; such restrictions are quite common around the country. § 204. Ethics Boards: Vacancies. When a vacancy occurs in the membership of the Ethics Board, the vacancy shall, within 60 days, be filled for the unexpired por- tion of the term in the same manner as the original appointment. Any person appointed to fill a vacancy on the Ethics Board shall meet the qualifications set forth in section 203 of this [chapter]. § 205. Ethics Board: Removal of Members. An Ethics Board member may be removed from office in the same manner in which he or she was appointed, after written no- tice and opportunity for reply. Grounds for removal shall be fail- ure to meet the qualifications set forth in section 203 of this [chapter], substantial neglect of duty, gross misconduct in office, 64. Carpinelli v. City of Kingston, 175 A.D.2d 509, 510, 572 N.Y.S.2d 777, 779 (App. Div. 1991). Page 171 19931 MODEL LOCAL ETHICS LAW inability to discharge the powers or duties of office, or violation of this [chapter]. § 206. Ethics Board: Meetings. At its first meeting each year, the Ethics Board shall elect a chair from among its members. A majority of the Board shall be re- quired for the Board to take any action. The chair or a majority of the Board may call a meeting of the Board. § 207. Ethics Boards: Jurisdiction, Powers, and Duties. 1. The Ethics Board may only act with respect to officers and employees of the [County, City, Town, or Village]. 2. The termination of a municipal officer's or employee's term of office or employment with the [County, City, Town, or Village] shall not affect the jurisdiction of the Ethics Board with respect to the requirements imposed on him or her by this [chapter]. 3. The Ethics Board shall have the following powers and duties: (a) To prescribe and promulgate rules and regulations governing its own internal organization and procedures in a manner consistent with this [chapter]; (b) To appoint hearing officers, an executive director, if necessary, and such other staff as are necessary to carry out its duties under this [chapter], and to delegate author- ity to the executive director, if any, to act in the name of the Board between meetings of the Board, provided that the delegation is in writing and the specific powers to be delegated are enumerated and further provided that the Board shall not delegate the power to determine viola- tions, recommend disciplinary action, impose any civil fine, refer any matter to a prosecutor, or render any advi- sory opinion. An executive director shall meet the quali- fications of an ethics board member as specified in section 203 of this [chapter]; (c) To review, index, and maintain on file lists of officers and employees, and disclosure statements filed with the Board, pursuant to sections 101, 104, 107, 108, 109, 201, 202, and 208 of this [chapter]; (d) To review, index, maintain on file, and dispose of sworn complaints and to make notifications and conduct investigations pursuant to sections 208 and 209; Page 172 110 FORDHAM URBAN LAW JOURNAL [Vol. XXI (e) To conduct hearings, recommend disciplinary action, assess penalties, make referrals, and initiate appropriate actions and proceedings pursuant to section 210; (f) To grant waivers pursuant to section 211; (g) To render, index, and maintain on file advisory opin- ions pursuant to section 212; (h) To provide training and education to [County, City, Town, or Village] officers and employees pursuant to sec- tion 214; (i) To prepare an annual report and recommend changes to this local law pursuant to section 215; (j) To provide for public inspection of certain records pursuant to section 216; and (k) To select provisions of this [chapter] for reproduc- tion and distribution pursuant to section 218. § 207.-Comment. This model law has been drafted so as to minimize the adminis- trative burden the law would impose on municipalities. For that reason, probably only the three or four largest municipalities in the state would find it necessary under this model law to hire staff for their ethics boards. All other municipalities could rely upon other municipal staff members for the occasional secretarial services or legal advice the enforcement of the law will require. However, care must be taken that any municipal staff used by the ethics board maintain the confidentiality of board actions and remain free from conflicts of interest and political and other pres- sures from superiors and peers. In particular, where the municipal attorney is a political appointee or is otherwise beholden to the chief elective officer or a majority of the governing body, the ethics board must have the authority, when necessary, to obtain separate counsel. For that reason, some municipalities may wish to require, in their ethics law, funding for such counsel, perhaps with the pro- viso that the ethics board, if feasible, shall request outside counsel to serve without compensation and in the public interest (see Buf- falo Board of Education Code of Ethics65). With respect to the authority of a municipality to authorize its ethics board to conduct investigations and subpoena documents and witnesses, see the comments to section 209 below. 65. Unpublished manuscript on file with the Fordham Urban Law Journal. Page 173 1993] MODEL LOCAL ETHICS LAW The Commission concluded that counties, cities, towns, and vil- lages subject to the mandatory annual financial disclosure require- ments of Article 18 of the General Municipal Law must give to their ethics boards the same powers and duties enjoyed by the Commission under General Municipal Law section 813 with re- spect to the enforcement of those requirements. 66 Specifically, such municipalities must provide for inspection and review of an- nual financial disclosure statements, receipt of complaints alleging ethics law violations, issuance of advisory opinions, extensions of time to file financial disclosure statements, deletion of information from copies of disclosure statements made available for public in- spection, exemptions from filing disclosure statements or from re- quirements to report items of information, notifications that a filer has failed to file or has filed a deficient statement, a fifteen-day period in which to cure such deficiencies, notices of delinquency, notices of possible ethics law violations and a fifteen-day response time, investigatory authority (including subpoena power), adjudi- catory proceedings, notices of no violation and notices of reason- able cause to believe a violation has occurred, the imposition of civil penalties up to $10,000 (or, in lieu thereof, referral to the pros- ecutor as a misdemeanor) for knowingly and wilfully failing to file an annual financial disclosure statement or knowingly and wilfully filing a false statement with intent to deceive, and restrictions on disclosure of ethics board documents.67 § 208. Review of Lists and Disclosure Statements. 1. The Ethics Board shall review: (a) The lists of officers and employees, prepared pursu- ant to section 201 of this [chapter], to determine whether the lists are complete and accurate. The Board shall add the name of any other officer or employee who the Board determines should appear on the list pursuant to section 107. (b) All annual disclosure statements to determine' whether any person required to file such a statement has failed to file it, has filed a deficient statement, or has filed a statement that reveals a possible or potential violation of this [chapter]. (c) All transactional disclosure statements. 66. See N.Y. GEN. MUN. LAW § 811(1)(d) (McKinney 1989). 67. See id. §§ 813(9)-(16), (18), 811(1)(c)-(d), 812(6). Page 174 112 FORDHAM URBAN LAW JOURNAL [Vol. XXI 2. If the Board determines that an annual disclosure statement or a transactional disclosure statement is deficient or reveals a pos- sible or potential violation of this [chapter], the Board shall notify the person in writing of the deficiency or possible or potential vio- lation and of the penalties for failure to comply with this [chapter]. § 208.-Comment. The only persons whom the ethics board may add to the list of filers are those persons whom the ethics law itself requires to file. Some municipalities may wish to include a requirement that the ethics board consult with the municipality's chief executive before adding a name to the list and perhaps a requirement that the chief executive notify the official that he or she is now required to file. Some municipalities may also wish to require the ethics board to provide forms for annual and transactional disclosure statements. It is not uncommon for an ethics law to set a deadline for the ethics board to review the list of filers and the annual disclosure statements themselves. However, the imposition of such deadlines on a volunteer board should be approached with caution. With respect to municipalities subject to mandatory annual fi- nancial disclosure, see comments to section 207. § 209. Investigations. 1. Upon receipt of a sworn complaint by any person alleging a violation of this [chapter], or upon determining on its own initiative that a violation of this [chapter] may exist, the Ethics Board shall have the power and duty to conduct any investigation necessary to carry out the provisions of this [chapter]. In conducting any such investigation, the Ethics Board may administer oaths or affirma- tions, subpoena witnesses, compel their attendance, and require the production of any books or records which it may deem relevant and material. 2. The Ethics Board shall state in writing the disposition of every sworn complaint it receives and of every investigation it con- ducts and shall set forth the reasons for the disposition. All such statements and all sworn complaints shall be indexed and main- tained on file by the Board. 3. Any person filing a sworn complaint with the Ethics Board shall be notified in writing of the disposition of the complaint. 4. Nothing in this section shall be construed to permit the Eth- ics Board to conduct an investigation of itself or of any of its mem- bers or staff. If the Ethics Board receives a complaint alleging that Page 175 19931 MODEL LOCAL ETHICS LAW the Board or any of its members or staff has violated any provision of this [chapter], or any other law, the Board shall promptly trans- mit to the [governing body of the county, city, town, or village] a copy of the complaint. § 209.-Comment. General Municipal Law section 808 contemplates that ethics boards will be purely advisory bodies with no investigatory or en- forcement power. However, as noted above, the Attorney Gen- eral's office and the Commission have taken the position that municipalities' home rule powers permit them, by local law, to vary the provisions of section section 808. 68 In particular, in the opinion of the Attorney General's office, "a local government, through en- actment of a local law, may grant to its board of ethics the author- ity to receive complaints alleging violations of ethics regulations, to investigate those complaints, and to conduct investigations on its own initiative as to whether violations of ethics standards have oc- curred. Further, [the Attorney General's office] believe[s] the board may be given enforcement authority and the local law may provide for the administering of penalties. 69 In short, "a city, or any other local government, by local law may grant to its board of ethics the authority to conduct investigations, subpoena power and enforcement power."7 0 The ethics board need not receive a sworn complaint before ini- tiating an investigation. Some municipalities may wish to change "sworn complaint" to "written complaint." Some may wish to re- quire that the official under investigation be notified of the out- come of the investigation. Some municipalities may wish to establish a procedure for a pre- liminary review of written complaints and to set a deadline for that review, thereby forcing the ethics board to weed out quickly any complaints that are clearly unjustified (see Buffalo Board of Edu- cation Code of Ethics7"). Although protection of the interests of the official under investigation are important, the setting of any requirements that impose undue burdens on the volunteer ethics board must be approached with caution. With respect to municipalities subject to mandatory annual fi- nancial disclosure, see the comments to section 207. 68. See Op. Att'y Gen. 86-44. 69. Op. Att'y Gen. 91-68. 70. Id. 71. Unpublished manuscript on file with the Fordham Urban Law Journal. Page 176 114 FORDHAM URBAN LAW JOURNAL [Vol. XXI § 210. Hearings; Assessment of Penalties; Injunctive Relief. 1. Disciplinary action. In its discretion, after a hearing providing for due process proce- dural mechanisms and subject to any applicable provisions of law and collective bargaining agreements, the Ethics Board may rec- ommend appropriate disciplinary action pursuant to subdivision 1 of section 111 of this [chapter]. The recommendation of the Ethics Board shall be made to the appointing authority or person or body authorized by law to impose such sanctions. The Board shall con- duct and complete the hearing with reasonable promptness, unless in its discretion the Board refers the matter to the authority or per- son or body authorized by law to impose disciplinary action or un- less the Board refers the matter to the appropriate prosecutor. If such a referral is made, the Board may adjourn the matter pending determination by the authority, person, body, or prosecutor. 2. Civil fine. In its discretion and after a hearing providing for due process procedural mechanisms,'the Ethics Board, pursuant to subdivision 2 of section 111 of this [chapter], may assess a civil fine, not to exceed $1,500 for each violation, upon any municipal officer or em- ployee found by the Board to have violated this [chapter]. The Board shall conduct and complete the hearing with reasonable promptness. The civil fine shall be payable to the [County, City, Town, or Village]. 3. Damages. The [governing body of the county, city, town, or body] may ini- tiate an action in the court of appropriate jurisdiction to obtain damages, as provided in subdivision 3 of section 111 of this [chapter]. 4. Civil forfeiture. The [governing body of the county, city, town, or village], or the Ethics Board on behalf of the [County, City, Town, or Village], may initiate an action or special proceeding, as appropriate, in the court of appropriate jurisdiction to obtain civil forfeiture, as pro- vided in subdivision 4 of section 111 of this [chapter]. Page 177 1993] MODEL LOCAL ETHICS LAW 5. Debarment. The [governing body of the county, city, town, or village], or the Ethics Board on behalf of the [County, City, Town, or Village], may initiate an action or special proceeding, as appropriate, in the court of appropriate jurisdiction for an order of debarment, as pro- vided in section 112 of this [chapter]. 6. Injunctive relief. The [governing body of the county, city, town, or village], or the Ethics Board on behalf of the [County, City, Town, or Village], may initiate an action or special.proceeding, as appropriate, in the court of appropriate jurisdiction for injunctive relief to enjoin a vi- olation of this [chapter] or to compel compliance with this [chap- ter], -as provided in section 113 of this [chapter]. 7. Prosecutions. The Ethics Board may refer to the appropriate prosecutor possi- ble criminal violations of this [chapter]. Nothing contained in this [chapter] shall be construed to restrict the authority of any prose- cutor to prosecute any violation of this [chapter] or of any other law. 8. Limit on Board. Nothing in this section shall be construed to permit the Ethics Board to take any action with respect to any alleged violation of this [chapter], or of any other law, by the Board or by any member or staff member thereof. § 210.-Comment. See discussion of penalties in the comments to section 111 above. Some municipalities may wish to grant a cure period (e.g., fifteen days) to any official who has failed to file an annual disclosure statement or who has filed a deficient statement. However, such cure periods; while they provide some protection for officials who inadvertently fail to file or disclose, undermine the effectiveness of annual disclosure requirements and impose unnecessary adminis- trative burdens on the ethics boards. School districts that adopt an ethics code based upon this model law should set forth procedures coordinating hearings under this Page 178 116 FORDHAM URBAN LAW JOURNAL [Vol. XXI section with disciplinary 72 hearings under sections 3020 and 3020-A of the Education Law. If a municipality desires, it may make explicit that any hearings and recommendations for disciplinary action 73 are subject to section 75 of the New York State Civil Service Law. With respect to municipalities subject to mandatory annual fi- nancial disclosure, see the comments to section 207. § 211. Waivers. 1. Upon written application and upon a showing of compelling need by the applicant, the Ethics Board may in exceptional circum- stances grant the applicant a waiver of any of the provisions of sub- divisions 1 through 9 of section 100, paragraph (i) of subdivision 1 of section 101, section 106, section 107, or section 108 of this [chap- ter], provided, however, that no such waiver shall permit conduct otherwise prohibited by Article 18 of the General Municipal Law of the State of New York. 2. Waivers shall be in writing and shall state the grounds upon which they are granted. Within 10 days after granting a waiver, the Ethics Board shall publish a notice setting forth the name of the person requesting the waiver and a general description of the na- ture of the waiver in the official newspaper designated by the [County, City, Town, or Village] for the publication of local laws, notices, and other matters required by law to be published. All applications, decisions, and other records and proceedings relating to waivers shall be indexed and maintained on file by the Ethics Board. § 211.-Comment. A provision for waivers of ethics provisions is dangerous because it opens the door to the wholesale gutting of local ethics laws, en- courages political pressure on the ethics board by various individu- als and groups within the community, and leads to charges of partiality, all of which undercuts the perception of the ethics board as an impartial, nonpartisan body of high integrity. For those rea- sons, many municipalities may wish to forego a provision for waiv- ers. Other municipalities, concerned over the need to remedy unnecessary hardship that some of the ethics provisions may im- 72. N.Y. EDUC. LAW §§ 3020, 3020-A (McKinney 1981). 73. N.Y. CIv. SERV. LAW § 75 (McKinney 1983 & Supp. 1993). Page 179 19931 MODEL LOCAL ETHICS LAW 117 pose upon an individual official in a particular instance, will wish to run those risks. To minimize the risks, section 211 sets a high standard for grant- ing a waiver ("compelling need" and "exceptional circumstances"), restricts waivers to certain specified ethics provisions, and requires that the waiver be published in the municipality's official newspa- per. Moreover, the state's Open Meetings Law may require that the meeting of the ethics board at which the waiver is considered be held in open session after public notice.74 Some municipalities may in fact wish to specify in their ethics law that waivers may only be granted at an open session after public notice or even that they may only be granted after a public hearing. An ethics board may not grant waivers from the requirements of Article 18 of the General Municipal Law. § 212. Advisory Opinions. 1. Upon the written request of any [County, City, Town, or Vil- lage] officer or employee, the Ethics Board may render a written advisory opinion with respect to the interpretation or application of this [chapter] or of Article 18 of the General Municipal Law of the State of New York. Any other person may similarly request an advisory opinion but only with respect to whether his or her own action might violate a provision of this [chapter] or Article 18. 2. Advisory opinions and requests for advisory opinions shall be indexed and maintained on file by the Ethics Board. 3. Any person aggrieved by an advisory opinion of the Ethics Board may seek judicial review and relief pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York. 4. Any person who has submitted to the Ethics Board a written request for an advisory opinion may bring a special proceeding pursuant to Article 78 of the Civil Practice Law and Rules for an order compelling the Ethics Board to issue the advisory opinion. In addition to, or in lieu of, such injunctive relief, the person may seek a judgment in accordance with section 3001 of the Civil Prac- tice Law and Rules determining the question posed in the request for the advisory opinion. No action or special proceeding shall be prosecuted or maintained pursuant to this subdivision unless (a) it shall appear by and as an allegation in the petition or complaint that at least six months have elapsed since the filing of the request and that the Ethics Board has failed to file any determination in 74. See N.Y. PUB. OFF. LAW §§ 100-111 (McKinney 1988). Page 180  FORDHAM URBAN LAW JOURNAL [Vol. XXI the matter and (b) the action or special proceeding shall be com- menced within ten months after the submission of the request for the advisory opinion. § 212.-Comment. To avoid burdening the ethics board with requests for advisory opinions, the model law permits a private citizen to request an ad- visory opinion only as to the permissibility of his or her own con- duct. Any official, on the other hand, may request an advisory opinion with respect to his own, a subordinate's, a superior's, or even a colleague's conduct. This section addresses formal advisory opinions. An ethic board remains free at any time to answer questions of anyone with re- spect to the model law or Article 18. Recognizing that persons requesting advisory opinions need quick answers to their ethics questions, section 212 acknowledges the right of a person to seek judicial assistance in compelling the ethics board to respond to a request for an advisory opinion or in answering the question posed, once six months have elapsed since submission of the request to the board. This provision obviates, to some extent, the limitation of section 113 injunctive relief to per- sons who have filed a sworn complaint. An official against whom a complaint has been made, or who is otherwise under investigation by the ethics board, may immediately request an advisory opinion as to the propriety of his or her conduct and, if that opinion is not forthcoming within six months, may proceed under section 212. Some municipalities may wish to make advisory opinions bind- ing upon the ethics board. For example, the municipality could in- clude the following in its ethics code: An advisory opinion rendered by the Ethics Board, until and unless amended or revoked, shall be binding upon the Ethics Board in any subsequent proceeding concerning the person who requested the opinion and who acted in good faith, unless he or she omitted or misstated a material fact. The opinion may also be relied upon by the person, and may be introduced and used as a defense, in any civil action brought by the Ethics Board or the [County, City, Town, or Village]. The second sentence would result in the ethics board's opinion binding not only the ethics board but also the municipality itself, for example in a disciplinary proceeding or in an action for dam- ages, civil forfeiture, debarment, or injunctive relief. Many munici- Page 181 1993] MODEL LOCAL ETHICS LAW palities may not wish to give that extensive authority to the ethics board. § 213. Judicial Review. Any person aggrieved by a decision of the Ethics Board may seek judicial review and relief pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York. § 214. Taining and Education. The Ethics Board: (a) shall make information concerning this [chapter] and Article 18 of the General Municipal Law available to the officers and employees of the [County, City, Town, or Village], to the public, and to persons interested in doing business with the [County, City, Town, or Village], and (b) shall develop educational materials and an educa- tional program for the officers and employees of the [County, City, Town, or Village] on the provisions of this [chapter] and on Article 18 of the General Municipal Law. § 214. -Comment. Educating officials and the public on Article 18 and the local ethics laws are among the most important functions of an ethics board. § 215. Annual Reports; Review of Ethics Laws. 1. The Ethics Board shall prepare and submit an annual report to the [chief executive officer and governing body of the county, city, town, or village], summarizing the activities of the Board. The report may also recommend changes to the text or administration of this [chapter]. 2. The Ethics Board shall periodically review this [chapter] and the Board's rules, regulations, and administrative procedures to de- termine to determine whether they promote integrity, public confi- dence, and participation in [County, City, Town, or Village] government and whether they set forth clear and enforceable, com- mon sense standards of conduct. Page 182 120 FORDHAM URBAN LAW JOURNAL [Vol. XXI § 216. Public Inspection of Records; Public Access to Meetings. 1. The only records of the Ethics Board which shall be avail- able for public inspection are those whose disclosure is required by Article 6 of the Public Officers Law of the State of New York or by some other State or Federal law or regulation. 2. No meeting or proceeding of the Ethics Board concerning misconduct, non-feasance, or neglect in office by a [County, City, Town, or Village] officer or employee shall be open to the public, except upon the request of the officer or employee or as required by the provisions of Article 7 of the Public Officers Law or by some other State or Federal law or regulation. § 216.-Comment. Any ethics board inquiry, including inquiries into complaints that later prove meritless, may compromise an official's career. For that reason, the model law permits an ethics board to disclose only those records for which disclosure is mandated by the state Free- dom of Information Law. 75 That law provides that an agency "may deny access" to certain records.76 The model law makes that denial mandatory. Similarly, the model law does not allow an ethics board to open its meetings to the public, except as required by the state Open Meetings Law or if requested by the target of the investigation, consistent with that law.77 The Open Meetings Law provides that a public body "may conduct" an executive session to discuss "the medical, financial, credit or employment history of a particular per- son or corporation, or matters leading to the appointment, employ- ment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation. '78 The model law makes such executive sessions mandatory, except on request of the official under investigation. However, in the Commission's opinion, in counties, cities, towns, and villages subject to the mandatory financial disclosure require- ments of sections 810-813 of the General Municipal Law, the only records an ethics board may open to the public with respect to such disclosure are those records identified in section 813(18)(a) of that law. The Commission took the position that under section 75. N.Y. PUB. OFF.LAW §§ 84-90 (McKinney 1988 & Supp. 1993). 76. Id. § 87(2). 77. See id. § 105 (McKinney 1988). Cf CRIM. PROC. LAW § 190.85 (McKinney 1993). 78. N.Y. PUB. OFF. LAW § 105(1)(f) (McKinney 1988). Page 183 19931 MODEL LOCAL ETHICS LAW 813(18)(b), ethics boards in those communities, with respect to such annual disclosure, are exempt from the Open Meetings Law. The Commission concluded that section 813(18) applies to those coun- ties, cities, towns, and villages, because of the language of section 811(1)(c) and (d). The Committee on Open Government dis- agreed with these conclusions and believed that the Open Meetings Law and the Freedom of Information Law govern local ethics boards in all instances. The model law intends that disclosure statements be made avail- able immediately upon the request of any person. Because the statements do not contain confidential information, it is unneces- sary to redact any information from them before disclosing them to the public. Some municipalities may in fact wish to require that disclosure statements, whenever practicable, be made available im- mediately upon request. To prevent the circulation of an officials' disclosure statements (particularly in an altered form), the Commission adopted a regu- lation prohibiting the photocopying of statements on file with the Commission.79 However, the Freedom of Information Law, which expressly provides for copying as well as for public inspection, may preclude a municipality from adopting such a regulation in a local ethics law. s° § 217. Miscelaneous provisions. 1. No existing right or remedy shall be lost, impaired, or af- fected by reason of this [chapter]. 2. Nothing in this [chapter] shall be deemed to bar or prevent a present or former [County, City, Town, or Village] officer or em- ployee from timely filing any claim, account, demand, or suit against the [County, City, Town, or Village] on behalf of himself or herself or any member of his or her family arising out of personal injury or property damage or any lawful benefit authorized or per- mitted by law. 3. If any provision of this [chapter] is held by a court of compe- tent jurisdiction to be invalid, that decision shall not affect the va- lidity and effectiveness of the, remaining provisions of this [chapter]. 79. N.Y. COMP. CODEs R. & REGS. tit. 9, § 9978.6(c) (1991); see also John v. New York State Ethics Comm'n, 581 N.Y.S.2d 882 (App. Div. 1992) (upholding similar regulation of State Ethics Commission). 80. See N.Y. PUB. OFF. LAW § 87(2) (McKinney 1988 & Supp. 1993). Page 184 122 FORDHAM URBAN LAW JOURNAL [Vol. XXI § 218. Distribution and posting. 1. Within 90 days after the effective date of this section, and thereafter as appropriate, the Ethics Board shall transmit to the [chief executive officer or, if none, the chair of the governing body] of the [County, City, Town, or Village], in a form suitable for post- ing, copies of those provisions of this [chapter] which the ethics board deems necessary for posting in the [County, City, Town, or Village]. Within ten days after receipt of those copies, the [chief executive officer or, if none, the chair of the governing body] shall cause the copies to be posted conspicuously in every public build- ing under the jurisdiction of the [County, City, Town, or Village]. 2. Within 90 days after the effective date of this section, and thereafter as appropriate, the Ethics Board shall transmit to the [chief executive officer or, if none, the chair of the governing body] of the [County, City, Town, or Village], in a form suitable for distri- bution, copies of those provisions of this [chapter] which the ethics board deems necessary for distribution to the officers and employ- ees of the [County, City, Town, or Village]. Within ten days after receipt of those copies, the [chief executive officer or, if none, the chair of the governing body] shall cause the copies to be distributed to every officer and employee of the [County, City, Town, or Vil- lage], and made readily available to the public. Every [County, City, Town, or Village] officer or employee elected or appointed thereafter shall be furnished a copy of those provisions within ten days after entering upon the duties of his or her position. 3. Failure of the [County, City, Town, or Village] to comply with the provisions of this section or failure of any [County, City, Town, or Village] officer or employee to receive a copy of the pro- visions of this [chapter] shall have no effect on the duty of compli- ance with this [chapter] or on the enforcement of its provisions. § 218.-Comment. Section 807 of the General Municipal Law requires that Article 18 be posted in its entirety. Section 806(2) requires that any ethics law adopted by a municipality be distributed to every officer and employee of the municipality. However, failure to post or dis- tribute does not affect the enforcement of those laws or the duty of officials to comply with them. The model law permits the ethics board to select provisions of the local law for distribution and posting. For example, the board of ethics may decide that only the Code of Ethics itself (section Page 185 1993] MODEL LOCAL ETHICS LAW 123 100) should be posted but that sections 100 to .113 should be dis- tributed to the municipality's officers and employees. Section 5. Effective Date. This local law shall take effect immediately upon filing in the office of the Secretary of State and in compliance with all applica- ble provisions of law. Page 186 124 FORDHAM URBAN LAW JOURNAL [Vol. XXI APPENDIX A SAMPLE ANNUAL DISCLOSURE STATEMENT UNDER THE LOCAL GOVERNMENT ETHICS BILL (S.6157/A.8637) ANNUAL DISCLOSURE STATEMENT [MUNICIPALITY] OF FOR 199 Last Name First Name Initial Title Department or Agency Work Address Phone No. If the answer to any of the following questions is "none," please so indicate. 1. REAL ESTATE. List the address of each piece of property that you, your spouse, or other relative own or have a financial interest in. List only real estate that is in the [municipality] of or within one mile of the boundary of the [mu- nicipality] of . "Relative" means your spouse, child, step-child, brother, sister, parent, or a person you claimed as a dependent on your latest state income tax return. Page 187  19931 MODEL LOCAL ETHICS LAW Name of Family Relationship Address of Type of Member to You Real Estate Investment 1 Main St., John Jones Father Teatown Owns] 2. YOUR OUTSIDE EMPLOYER OR BUSINESS. List the name of any outside employer or business from which you receive compensation for services rendered or goods sold or produced or of which you are a member, officer, or employee. Also include any entity in which you have an ownership interest, except a corporation of which you own less than five percent of the outstanding stock. Identify the type of business, such as a partnership, corporation, self employment, or a sole proprietorship and list your relationship to the employer or business (i.e., owner, partner, officer, director, member, employee, or shareholder). Name of Employer or Nature of Type of Your Business Business Business Relationship Monument Real Estate [E.g.: Realty Agency Partnership Employee] Page 188  126 FORDHAM URBAN LAW JOURNAL [Vol. XXI 3. YOUR SPOUSE'S EMPLOYER OR BUSINESS. List the information in question 2. for your spouse. Name of Employer or Nature of Type of Spouse's Business Business Business Relationship Pottery [E.g.: Pottery Ltd. Manufacturer Corporation Treasurer] Date: Signed: Page 189 Amend the current ARTICLE VIII, MISCELLANEOUS PROVISIONS, by renumbering it ARTICLE IX, MISCELLANEOUS PROVISIONS and by adding the following new ARTICLE VIII, CIVILIAN POLICE REIEW BOARD, as follows: Article VIII: CIVILIAN POLICE REVIEW BOARD Section 1. Purposes, composition, term, appointment, first board, qualifications, vacancies, removal, compensation. (a) Purposes. For the purposes of increasing public trust and confidence in the Portland Police Department; discouraging police misconduct; helping police officers to feel vindicated in the eyes of their fellow officers and of the public; reassuring the public that complaints are investigated thoroughly and fairly; helping the public to understand the nature of police work; providing oversight of Internal Affairs; defusing public hostility toward police officers; reducing the likelihood of lawsuits against the City; and improving police practices and procedures in interactions with the public, there shall be a civilian police review board. (b) Composition, term, appointment, first board. The civilian police review board shall be composed of nine (9) or more members who shall hold office, except as hereinafter provided, for a term of three (3) years unless appointed to fill a vacancy, and until their successors are appointed and qualified, but in no case longer than 120 days after expiration of their term. A minimum of four (4) voting members shall be appointed by the city council, one (1) voting member shall be appointed by the mayor and three (3) non-voting members shall be appointed by the city council. A majority of the total number of voting members appointed shall constitute a quorum of the board and the board shall act by a majority of voting members present and voting. For the first board appointed following its creation, the city council and mayor shall first select from the current members of the police citizen review subcommittee, currently established by City ordinance, which subcommittee shall be supplanted by the board, in making appointments to the board. On the first board, two voting members shall serve for a one (1) year term, two voting members shall serve for a two (2) year term, and the voting member appointed by the mayor, shall serve for a three (3) year term; and one non-voting member shall serve for a one (1) year term, one non-voting member shall serve for a two (2) year term, and one non-voting member shall serve for a three (3) year term. Thereafter, all members shall serve for a term of three (3) years. No person shall be appointed to, nor serve, more than three (3) consecutive full terms or nine (9) consecutive years, whichever is greater, on the board. Following appointment of the first board, the city council shall exercise its power of appointment only after the city clerk has published a notice announcing the availability of board positions, describing the responsibilities thereof and soliciting applications by qualified persons, in a newspaper of general circulation at least 15 days before city council acts to appoint to the board. {P1994819.1} 1 Page 190  (c) Qualifications. All candidates for the civilian police review board must be at least 18 years of age and must be residents of the City for a period of at least three (3) months prior to the date on or before which board member is to be seated. (d) Vacancies. A vacancy in the membership of the civilian police review board member shall occur by a death, resignation or removal. A vacancy in the office of civilian police review board member shall be filled by the appointing authority for that office, and the person appointed to fill the vacancy shall serve the remainder of that term. Any board member who subsequent to appointment becomes disqualified or ineligible to serve shall resign, and failure to do so shall constitute “cause” under (e) below. (e) Removal. Any civilian police review board member may be removed from office by the city council for cause, after notice and the opportunity to be heard. Failure to disclose grounds for disqualification under (c) above shall disqualify the person from service on the civilian police review board and shall constitute “cause” for removal. (f) Training. Prior to assuming their duties hereunder, civilian police review board members shall attend training by city staff as to the board’s duties and responsibilities, applicable state and local law, ordinances and rules and regulations, accepted police practices and the police department’s internal affairs investigation process. (g) Confidentiality. Each member of the civilian police review board is obligated to maintain the confidentiality of all information and documents either provided to or reviewed by them, in accordance with state law. Failure to maintain such confidentiality will be constitute “cause” for removal from the board under (c) above. All reports and requests for disclosure of any information shall be referred to the corporation counsel for review prior to release. Section 2. Powers and duties. (a) Complaints. The civilian police review board shall receive all complaints brought by civilians regarding the Portland police department and shall refer such complaints to the Portland police internal affairs department. Members of the police department may bring complaints to the board, to internal affairs, or to command; the board shall refer any such complaints it receives to internal affairs. Portland police department command shall review internal affairs draft findings on complaints and shall submit its report on the conclusions of any investigation on complaints to the board for consideration no more than fourteen (14) days after the findings become final and after any final disciplinary action has been taken and all appeals exhausted or settled or the case has been closed with no disciplinary action. Neither police officers nor their representatives may file complaints regarding disciplinary actions or personnel matters under this subsection. (b) Review, reports. The board shall review all final investigation reports submitted by internal affairs and/or command staff under Section 2. (a) above for due process issues, including but not limited to, issues of fairness, thoroughness, objectivity, and timeliness. Although it shall have access to individual internal affairs reports in order to review {P1994819.1} 2 Page 191  investigative methods and procedures, all reports of the board issued to address complaints filed under Section 2. (a) above shall be done in such a manner that particular complainants, witnesses and officers are not personally identifiable. Reports of the board shall be made available to the public to the extent consistent with the State Freedom of Access Act, 1 M.R.S.A. Sec. 401 et seq. (c) Appeals. The city council shall by ordinance adopt an appeal process consistent with federal, state, and local law for persons aggrieved by a report issued by the civilian police review board on complaints filed with the Board under Section 2. (a) above to appeal that Board report to the city council or such other body as the city council may designate or create for a hearing, in executive session where required, and for the issuance of an advisory opinion which shall not be legally binding on the city, the police department, police officers, or individuals, and which hearing and advisory opinion shall not include or address any disciplinary proceedings. Neither police officers nor their representatives may file appeals regarding disciplinary actions or personnel matters under this subsection. (d) Policy. The civilian police review board shall be able to make policy recommendations to the mayor, the city council and the chief of police. (e) Annual report, communications, additional duties. The civilian police review board shall hold a public hearing at least annually to receive comments upon the community complaint process and to engage City residents as to the board’s purposes and goals, and shall prepare and present to the mayor, city council, and chief of police an annual report, including but not be limited to, policy and funding recommendations, and the number of complaints submitted to the board and the number of complaints resolved during the previous year. Any recommendations made by the board regarding the police department shall be based on policy evaluations, may be assigned by the city council and mayor to staff for research, and may be enacted or implemented. The board also may, in its discretion, address the city council on an as-needed basis. The city council and mayor may add to the board’s duties by ordinance at any time. (f) Board Officers. The civilian police review board shall annually elect one of its members to serve as chair, and shall annually elect one of its members as vice-chair, to serve in the absence of the chair. The corporation counsel or his or her designee shall serve as secretary to the board and shall furnish any necessary administrative assistance to that board. (g) Procedural rules. The civilian police review board shall make suitable procedural rules, from time to time, for the conduct of its duties. Proposed rules shall be submitted to the city council and shall become effective only when approved by the city council. All such rules shall be recorded in the office of the city clerk. Section 3. Funding, staff, resources. (a) Funding, staff. The civilian police review board shall be funded as needed by the city council through the annual budget. Such funding shall include professional staff, {P1994819.1} 3 Page 192  including but not limited to a “Community Liaison” and a “Police Liaison” familiar with Portland police department standard operating procedures. The city council shall decide whether the community liaison and police liaison positions are part-time or full-time and/or whether the duties of these positions may be assigned to existing employees. The community liaison shall serve at the direction of the board and shall ensure the public is aware of the methods for filing complaints, and shall assist the board with carrying out its duties, powers and functions, conducting outreach and with other duties as the board may assign. The board may request additional funding from the city council at any time. The police liaison may be the same person/position as the “technical advisor” described in Section 3(b) below. (b) Resources. The city shall make available to the board the services of a technical advisor, as needed by the board. The technical advisor may be used for the purposes of training; briefing the board on accepted police practices, applicable law and issues relevant to the discharge of the citizen review function; and educating the board on aspects of the internal investigation process. The technical advisor shall be retained by the city manager after consultation with the chief of police, representatives of the police unions and the chair of the board. Any person who presently maintains any business or professional affiliation with the police department shall be disqualified from serving as technical advisor. The city shall further make available all internal affairs investigation reports and police documents relevant to such investigations which are necessary for the board to conduct its duties hereunder. In no case shall the board have access to police officers’ personnel records except to the extent that they are part of an internal affairs investigation report or are considered a public document under the Maine Freedom of Access Act. (c) Coordination. The board shall work in conjunction with the City’s communication department, internal affairs, and any other city departments or offices to effectuate all powers and duties granted to it in this charter and any additional duties assigned to it by the city council or mayor. {P1994819.1} 4 Page 193