General Practice, Solo & Small Firm DivisionMagazine
State and Local Government Law
Ten Effective Strategies for Counseling Municipal Clients on Ethics Issues
By Patricia E. Salkin
Municipal attorneys should take the lead in developing proactive strategies for ensuring the most ethical government possible by providing regular counsel on matters of ethics for municipal clients–even when not specifically requested to do so. They should consider appropriate steps to minimize municipal officials’ exposure to potential allegations. Municipal attorneys should consider employing a combination of different types of ethics education activities designed to provide ongoing sensitivity to ethics issues which may arise.
Provide each newly elected and appointed municipal official with a compilation of applicable ethics laws, rules, and regulations. When a person is first elected or appointed to public office, they should be presented with a packet of applicable ethics laws and regulations that govern their conduct. Accompanying this compilation of laws could be a cover memo from the municipal attorney summarizing key provisions and highlighting key state and local ethics opinions of interest to the officials. This packet should be kept up-to-date and ready for distribution each January. Since no such packet is required by law, it will take the initiative of the municipal attorney to develop and implement this strategy.
Offer at least one annual ethics training session for elected and appointed officials. Try a short interactive session with hypotheticals. Using facts from recent opinions of the attorney general or comptroller or from a governing state or local ethics commission is one way to command immediate attention. Not only are the "hypotheticals" not as fictitious as the audience might like to believe, but in discussing appropriate responses, municipal attorneys can draw upon the reasoning espoused by an official charged with interpreting certain ethics provisions. Some municipal officials who are under the jurisdiction of active ethics boards have been trained through role playing and/or games (modeled on board games such as Trivial Pursuit or game shows like Jeopardy).
Develop an ethics checklist for municipal officials. Design a short ten- or fifteen-question ethics checklist for municipal officials consisting of questions regarding potential family, business, work, and financial conflicts issues. Financial conflict-of-interest is the area where a great number of ethics allegations are lodged. By simply "asking the questions," even if all the attorney does is hand out the paper and request that everyone take it home for a "self-test," awareness is raised, and perhaps heightened scrutiny will prevail before the official takes an action that could present a potential conflict situation, such as passing upon an application involving a business associate or a relative.
Circulate clippings from current publications. Circulate clippings from local and regional newspapers and magazines to municipal officials with an "FYI" notation. No explanation is necessary for municipal clients to get the message that the media, citizen groups, political enemies, and others are lurking in the background waiting for an opportunity to catch an unsuspecting official dozing at the "ethics wheel." This type of subtle and relatively painless ethics education process is understated yet can serve as a powerful reminder of the impact of quick decisions absent ethical considerations.
Raise an ethics issue from a neighboring jurisdiction at a board meeting.This strategy is most appropriately used by simply raising the fact that an ethics allegation or inquiry was made in a neighboring jurisdiction. Use the occasion to discuss whether the conduct is reasonable, legal, or moral based upon community standards in your municipality. This is a comfortable way to discuss actions and situations which could just as easily arise "at home."
Encourage periodic review of the local ethics law. Ethics laws are typically adopted following on the heels of a scandal or crisis, or enacted as a result of a state mandate. Once these laws are enacted, they tend to sit on the books for long periods of time without review. But, like comprehensive land-use plans, these documents lose their shelf life as time goes on and community standards, ethics, and values change. Furthermore, new situations arise which were often not contemplated when the ethics law was under discussion, and over time, citizens, the media, and officials learn about provisions which may have been inadvertently overlooked.
Recommend a manner in which the review should be conducted. Who should be responsible for the review (e.g., the local legislative body, an ad-hoc public/private specially appointed body), who should be included in the review process, and the level of public participation should all be discussed. Consider inserting a provision in the local law requiring periodic review every five to ten years.
Recommend the appointment of an ethics officer. Once an environment is created where ethics issues are on the forefront of officials’ minds, there will likely be more questions asked. Recommend the appointment of a municipal ethics officer who is charged with providing guidance to local officials. The municipal attorney may be the ethics officer, or some other employee may be designated. Make certain that this individual is vested with independence from the political process. Consideration should also be given to the precise functions and duties to be performed.
Seek the appointment of a local ethics board or commission. The powers granted to ethics boards and commissions are wholly controlled by the local government through the enacting legislation, and the establishment of these bodies can provide great protection for local officials. For example, where a local official is uncertain whether a particular action is appropriate, she or he can seek an opinion from the local ethics board. In the event that the board does not have any concerns with the proposed activity, the official may decide to proceed, with the comfort that if questioned by the media, she or he can produce an opinion from the local ethics board stating that no conflict existed. Issues of political appointments to the board, terms of office, independence, and powers granted to the board are matters for the local legislative body to consider.
Designate a board member as the "ethics guru." Just as local board and commissions may consist of committees, consider appointing an elected or appointed member of each local board or body as the "ethics guru" for that entity. They may serve as the municipal attorney’s conduit for raising ethics issues in a proactive way before colleagues. They may also be the informal, "in-house" questioner of ethical conduct prior to actions being taken which may later be challenged in the media. This person may also be charged with attending special municipal ethics courses and bringing back information and training to the board.
Conduct an ethics audit. Just as government law offices conduct preventive law audits of various municipal departments to determine where there may be exposure to municipal liability, consider conducting formal or informal ethics audits of municipal officials and departments for the purpose of helping to identify potential areas of concern. This may most effectively be accomplished through an interview process of key decisionmakers and policymakers.
Patricia E. Salkin is director of the Government Law Center and associate dean of Albany Law School where she teaches a course in government ethics.
- This article is an abridged and edited version of one that originally appeared on page 9 in the State & Local Law News, Fall 1998, (22:1).