Municipal Ethics News and Views

New York State's Proposed Ethics Initiative: A Great Idea With A Serious Omission

Lots on press in the last day about the news from New York state's comptroller, Thomas DiNapoli, regarding his proposal to strengthen the state's municipal ethics. The summary press release from his office can be found here.

Following a statewide audit involving 31 municipalities and interviews with many top local government officials, it was found - no great surprise - that many municipalities fell well short of seemingly basic ethics oversight. Key findings from these audits and interviews included:

• "Twenty municipalities required certain officials and employees to file annual financial disclosure forms to identify potential conflicts of interest, 12 municipalities did not collect all the forms, nine did not make sure the forms were complete, and 14 did not review the forms to identify conflicts of interest;

• Five of 20 boards of ethics had not convened for periods ranging from two to 11 years, and one county board has never convened;

• All 31 municipalities had adopted codes of ethics, but only 26 of these codes addressed all of the ethics topics required by state General Municipal Law. 13 percent of the CEOs surveyed responded that their municipalities had not adopted codes of ethics at all or that they did not know whether a code existed; 61 percent of the local governments’ codes did not address misuse of municipal resources, 45 percent did not address recusal, and 84 percent did not address the hiring and supervision of relatives; all issues that local officials and employees may face on a regular basis;.

• Sixteen percent of surveyed CEOs reported either that their code of ethics had not been distributed to all officials and municipal employees, or they did not know whether it had been distributed. The audit found that 52 percent of the municipalities had not distributed their codes to all officers and employees, as required; and

• More than 80 percent of the municipalities audited provided no ethics training to their officers and employees. Only 56 percent of local officials or employees in municipalities of 25,000 or more surveyed responded that they had ever attended training on ethics. This percentage dropped to 45 percent for respondents representing smaller municipalities."

DiNapoli's plan is to provide a set of both standards and guidelines to help assure that municipalities meet at least minimal standards of ethics oversight. His initiative also provides a model ethics code for municipalities which, on quick glance, appears to be well-considered and thorough if perhaps suffering a bit from sections that could be more plainly stated. They have also included what I think is an extremely well-written FAQ document regarding the model ethics code - a practice that I think far more folks should employ. Frankly, I think this type of document usually provides far more easily-applied language and information than do most of the codes themselves... (I will be looking at the proposed model code more thoroughly at my first opportunity and will provide a more thorough critique if, in fact, anything of particular interest strikes me about it.)

So what jumps out at me most immediately about DiNapoli's proposal? The proposed recommendation, as reported in the press release only seeks to "require training for board members on their roles and responsibilities". If taken literally, and the press release gives no reason to do otherwise, this represents a huge, critical omission. First of all, far more than the boards will require ethics training; it really needs to be provided - and provided in a truly meaningful, easily-applied and easily retained form - to all municipal officials and employees.

Secondly, "roles and responsibilities" needs to be fleshed out to a far greater degree. Why? Because, historically these have typically been defined as a very narrow band of mandates that are essentially job-specific. Until all municipal officials and employees have broad training in the do's and don'ts of working in a business/government environment, far too many will stumble their way, however unintentionally, into costly ethical and legal troubles on the job. Lest it need to be said, this is not a slam on these folks in any way, shape or form; they are usually hard working, good people. It is merely saying that they have a lot to learn when it comes to preventing ethical and legal problems on the job and they can't be expected to learn it by osmosis - effective and appropriate training needs to be provided.

To amplify this last point, let's remember that ethics training, when offered or required at all, has usually been provided in an essentially perfunctory manner and that simply won't get the job done. Ethics training needs to involve faaaaaaar more than simply assuring that everyone has read the ethics code or that they can answer some true-false questions online every year about a few legal mandates. Officials and employees will need to understand how to think better on their feet about ethics and how best to make more ethically-informed and ethically-attuned decisions all day, every day. Helping officials and employees do so will admittedly require a significant investment in training on the state's part but remember, the alternative is to have a shiny new set of ethics mandates and guidelines that, no matter how well-intentioned or well-written - are essentially just window-dressing.

If New York wishes to find a way to really prevent ethics problems, a much more ambitious ethics training program is going to need to be developed and then mandated.

Quebec Tightens Municipal Contract Rules

In the last day, I've run into several articles and blog posts announcing Quebec's new Bill 76 which seeks to allow far greater transparency in regards to municipal contracts. The Quebec Portal summarizes the this bill as including:

- the obligation to provide citizens with more information about municipal contracts awarded by a municipality;

- greater leeway for Department auditors;

- the obligation for municipalities to provide the information required for auditors to do their work;

 - the obligation not to disclose the names of tenderers before tenders are opened;

- the obligation, for municipalities, to adopt a contract management policy.

A post on Davis, LLP's blog adds more specifics and reports that this bill also:

"creates an obligation for municipalities to prepare an estimate for all contracts expected to be in excess of $100,000 and to maintain an easy to understand, comprehensive and accessible list via Internet for all contracts awarded in excess of $25,000. Also, payments representing 10% or more on any such contracts in excess of $25,000 cannot be made prior to publication of basic information regarding the contract, the tendering parties and prices quoted by all parties. Lastly, information regarding the actual cost to execute a contract must be published as soon as possible following completion and all published information must remain available and posted for a period of at least 3 years.

In addition to Bill 76 and as part of its ongoing efforts regarding ethics in the public sector, the government expects to pass another bill during the Québec legislature's 2010 spring session which would also create an obligation for all municipalities to adopt a code of ethics."

Bravo to Quebec for taking these steps. As is always the case with such things, I'll be interested to hear how the legislation translates into 'real-world' actions. Any information you may have on how this does or doesn't work as it's rolled out would be terrific.