ETHICS STANDARDS AND THE CITY CHARTER

1. ETHICS STANDARDS AND THE CITY CHARTER Leonard Weber, Ph.D. Professor Emeritus, University of Detroit Mercy Citizen, City of Detroit March, 2010

2. INTRODUCTION The focus here is on Article. 2, Section 2-106 of the current City Charter: “Standards of Conduct.”

3. INTRODUCTION This discussion of issues and questions related to this sectionis designed to raise start the conversation about possible revision of this section of the Charter.

4. PART 1THE IMPORTANCE OF ETHICS

5. IMPORTANCE OF ETHICS “When ethics are in disorder, or when citizens reasonably believe they are, one should not be surprised that disputes about ethics drive out discussion about policies. Attention needs to be paid to ethics precisely so that ethical controversy does not distract from matters that would otherwise be more important…

6. IMPORTANCE OF ETHICS “…Ethics makes democracy safe for debate on the substance of public policy. That is why it is so important. That is the sense in which it is more important than any other single issue.” (Dennis Thompson, “Paradoxes of Government Ethics,” 1992.)

7. IMPORTANCE OF ETHICS “Public servants should treat their office as a public trust, only using the powers and resources of public office to advance public interests, and not to attain personal benefits or pursue any other private interest incompatible with the public good.” (“Preserving the Public Trust.” Josephson Institute)

8. IMPORTANCE OF ETHICS While public servants have a responsibility to put the public good above private interests, they do their work in a context in which others (individuals, businesses, organizations) are often pursuing private interests.

9. IMPORTANCE OF ETHICS In such a context, explicit ethics standards assist the conscientious official in resisting the influence of private interests.

10. IMPORTANCE OF ETHICS Personal moral integrity is not the only issue – and may not be the most important one. Even individuals of high moral character need clarification and guidance regarding what it means to put the public interest first.

11. IMPORTANCE OF ETHICS High ethical quality in city government is defined not just by the absence of crimes like bribery and extortion, but by all public servants putting the public good before private interests on a day-to-day basis.

12. PART 2THE ETHICS ORDINANCE

13. ETHICS ORDINANCE Article 2, Section 2-106 of the 1997 Charter begins this way: “The use of public office for private gain is prohibited. The City Council shall implement this prohibition by ordinance, consistent with state law. The ordinance shall contain appropriate penalties for violations of its provisions.”

14. ETHICS ORDINANCE Article 2, Section 2-106 continued: “The ordinance shall provide for the reasonable disclosure of substantial financial interests held by any elective officer, appointee, or employee who regularly exercises significant authority over the solicitation, negotiation, approval, amendment, performance or renewal of city contracts….”

15. ETHICS ORDINANCE Article 2, Section 2-106 continued: “The ordinance shall prohibit actions of elective officers, appointees, or employees which create the appearance of impropriety.”

16. ETHICS ORDINANCE In considering whether the Charter language is satisfactory, it is important to review the Ethics Ordinance that was passed as a result of this Section.

17. ETHICS ORDINANCE The drafters of the Ethics Ordinance seem to have been particularly focused on “use of public office for private gain” and on “disclosure of substantial financial interests.”

18. ETHICS ORDINANCE While prohibiting “the use of public office for private gain” is essential to good ethics policies, that phrase does not capture all of the private interests that can be incompatible with the public good.

19. ETHICS ORDINANCE Example: Municipal ethics standards sometimes include requirements related to use of government employees’ time for political activity.

20. ETHICS ORDINANCE Example: Municipal ethics standards sometimes include nepotism standards, such as prohibiting the hiring or appointment of relatives.

21. ETHICS ORDINANCE Example: Municipal ethics standards sometimes include requirements related to employment after public service.

22. ETHICS ORDINANCE Example: Municipal ethics standards sometimes include conflicts of interest requirements related to campaign contributions.

23. ETHICS ORDINANCE The Commission may want to consider whether some other categories of prohibition should be required in the Ethics Ordinance (in addition to “the use of public office for private gain”).

24. ETHICS ORDINANCE A similar point can be made about “disclosure of substantial financial interests.” While disclosure is important, it might be too limited an approach.

25. ETHICS ORDINANCE The general issue is usually described as conflicts of interest.

26. ETHICS ORDINANCE While there is often an emphasis on financial interests in conflict-of-interest analysis, there are a variety of other considerations and relationships that might influence persons to act contrary to their responsibilities.

27. ETHICS ORDINANCE A conflict of interest is present when an individual has a relationship or is otherwise subject to influences that have a significant potential to result in judgments or actions contrary to professional or ethical responsibility.

28. ETHICS ORDINANCE To say there is a conflict of interest present is to say that one is at risk of failing to carry out a responsibility appropriately. It is not saying that someone has (already) done something “wrong.”

29. ETHICS ORDINANCE A major concern is that one will be influenced to compromise one’s professional objectivity, even without intending to. “Good people” are susceptible to conflicts of interest.

30. ETHICS ORDINANCE Good standards of conduct often function as “preventive ethics.”

31. ETHICS ORDINANCE Disclosure of a relationship or of a financial interest may not be sufficient to reduce the likelihood of putting some private interest first or of having one’s objectivity compromised.

32. ETHICS ORDINANCE Example The ordinance requires the disclosure of campaign contributions (as required by state law). But there is nothing to prevent a City Council member from voting on a contract that has a direct financial impact on a major campaign contributor.

33. ETHICS ORDINANCE Example City appointees who are relatives of the Mayor, a City Council Member, or of the City Clerk must disclose the relationship on a form that is to be at filed in the Office of Board of Ethics. Then what?

34. ETHICS ORDINANCE Disclosure by itself does not greatly reduce the potential that one’s professionalism or objectivity will be affected. It primarily serves to warn others of the potential for compromised behavior.

35. ETHICS ORDINANCE A more complete approach to conflicts of interest would include those that are not financial and would also include methods in addition to disclosure for managing conflicts.

36. PART 3THE BOARD OF ETHICS

37. BOARD OF ETHICS Boards of Ethics can have different functions, including: - issuing advisory opinions - investigating alleged violations - enforcing standards of conduct - educating/training

38. BOARD OF ETHICS The Charter mandates a seven member Board of Ethics, residents of Detroit appointed for 5 year terms. Three appointed by City Council Three appointed by the Mayor One jointly appointed

39. BOARD OF ETHICS The Board of Ethics has the authority to issue advisory opinions regarding the meaning and application of the standards of conduct and may make recommendations for improvements in the standards.

40. BOARD OF ETHICS The Board also has the authority to investigate complaints of alleged ethics ordinance violations.

41. BOARD OF ETHICS The Charter does not empower the Board of Ethics to impose penalties upon a public servant for violation of the Ethics Ordinance.

42. BOARD OF ETHICS The Charter does requires that the Ethics Ordinance establish penalties for violation of its provisions. According to the Ordinance, the Board of Ethics, may, if it finds that someone has violated the ordinance…

43. BOARD OF ETHICS - adopt a resolution of public admonition, or - refer the matter to the City Council for further investigation regarding possible forfeiture of office, or

44. BOARD OF ETHICS - refer the matter to that person’s supervisor with a recommendation that the public servant’s conduct be reviewed for possible disciplinary action.

45. BOARD OF ETHICS Since the Detroit Ethics Ordinance does not specify the consequences for violating the standards, limiting the Board’s enforcement authority to referral may do little to assure the public that there will be consequences for violations.

46. BOARD OF ETHICS This Commission may want to consider whether the Board of Ethics role in responding to violations is adequate. Does it have the necessary authority to ensure a high level of ethical behavior by city officials?

47. BOARD OF ETHICS Another question is whether the City Charter should require ethics training for (some) public servants. This might be a responsibility of the Board of Ethics.

48. BOARD OF ETHICS Good ethics is not easy – it requires attention to details, circumstances, and role responsibilities. It does not come naturally, even for persons of integrity.

49. BOARD OF ETHICS Example It is not immediately evident to everyone why it is ethically questionable for a public official to accept a gift from a private person, even when there is no quid pro quo.

50. BOARD OF ETHICS Example The fact that one is a person of integrity does not mean that she or he knows whether and/or when it is acceptable to accept conference travel expenses from a party other than the city.