Proposal to Establish Lakewood Ethics Commission

Ethical failures in governance are a real, ongoing challenge to all of the values which public policy leadership can advance. Fairness, equality of opportunity, public safety and basic social cohesion are all impaired in the absence of a strong system of ethics in government.

Many of those active in local government like to emphasize that it has a more direct impact on individuals’ day to day lives than state or federal government. This point is nonetheless usually made in the context of the relatively small attention which local government receives from the general public. These by themselves offer an argument that local government’s need for robust, institutional ethics measures is not less than at levels of government where the absence of such institutions is almost unthinkable.

Meanwhile, investigative journalism and nonprofit organizations, which work alongside public watchdogs at those levels, are largely missing at the local government level. Yet private money is not. Public Citizen warned four years ago that dark money was already finding its way even to “relatively obscure, local elections.” The potential for such spending to bring with it the distaste and distrust which now attend national politics should be cause for concern.

The challenges in Lakewood’s future will, in many cases, require greater trust, to achieve the scale of collective action for appropriate solutions. (Problems of aging infrastructure, environmental adaptation, etc.) Rather than waiting for more evidence of a need and starting the process of improving trust from further behind, Lakewood’s community and the government should come together now in a proactive campaign for ethics infrastructure.

Once a commission is established it should immediately begin a review of current ethics rules and policies of the City and also look at new provisions.

Part I: The Commission Mission

In January 2019 I will be introducing an ordinance that establishes a City of Lakewood Ethics Commission. The time is now for Lakewood’s community to discuss and create a permanent ethics commission, to promote reliable ethics practices throughout the branches and departments of our local government:

  • Serve as an ethics oversight institution which is permanent, dedicated to Lakewood, and approaches this issue with both professionalism and independence
  • Answer ethics questions and investigate ethics complaints
  • Provide for ethics training to help every public servant be more proactive, individually, through a better idea of what questions to ask
  • Provide the community with a specific, local authority on government ethics questions
  • Enforce ethics rules to create fairness for public servants whose good intentions on government ethics are otherwise penalized, in an environment with less clear incentives to resist competing for personal, political and social pressures

The commission should be a permanent, independent body empowered to:

  1. Advise on ethics policy,
  2. Investigate and enforce such ethics policies as are adopted by the City of Lakewood. Such as campaign finance ordinances.

The ethics commission should be as much as possible a diverse body, removed from dependence on any individual, political faction or branch of government. The commission should be secure in budgetary resources necessary to conduct its business and to hire such staff as are appropriate. (e.g. a contracted ethics officer for training, advice, research, etc.)

The ethics commission should have jurisdiction over all local government officials, branches and departments. The commission should also have jurisdiction over employees and board members of quasi-public and public-private agencies and authorities.

The Vision

An effective ethics commission can best serve Lakewood, directly, by preventing misuse of community resources. Additionally, it can be a unifying community project, to engage a diverse cross-section of Lakewood in formally defining ideals of what public service should live up to, and determining how best to build trust that this is genuinely the case.

The ethics commission can also provide a valuable contribution to potential reforms in neighboring communities and at other levels of government. Multiple organizations with an ultimate aim of national reforms have focused recently on building momentum from the local level upward, and Transparency International has documented that “local anti-corruption work can complement, support and even supersede national-level initiatives.” (The potential relevance seems considerable for a local government which has in recent years launched the careers of a state representative, a state senator, a county executive and a candidate for governor.)

PART II: Proposed Ethics Policies

Once we have established a commission I will bring forward and, should it be the will of the council, have the commission work on a set of ethics policies.  The following are a few ethics policies from the Cityethics.org and Model Charter projects and recommended as the starting point for an expanded government ethics framework in Lakewood.

  • Disclosure: establish a right for the public to expect disclosure of interests, in three categories: an annual disclosure statement, disclosure when a conflict arises (transactional disclosure), and disclosure when someone bids for business or requests a permit (applicant disclosure)
  • Campaign Contribution Limits: Limits donation to federal campaign finance limits. $2,700 total accumulative donation from one individual during one cycle is one example of a limit this initiative would impose.
  • Conflict of Interest: prohibit the use of one’s position to do anything that may directly or indirectly, financially or personally, benefit an official or employee, family, or business associate, except to the extent a large segment of the community also benefits.
  • Council Appointee Ineligibility: Whoever is appointed, by Council or the Mayor to fill a vacancy on Council, that person shall not be eligible for election to that see in the nearest term. Appointees would only be allowed to serve out the rest of the term or until the nearest special election, then they must not run for the seat they hold.
  • Withdrawal from Participation: also known as recusal, withdrawal is a standard response to a pre-existing conflict of interest. Withdrawal means not participating in the relevant matter at all, not even discussing the matter, privately or publicly, directly or indirectly. (Withdrawal is not, however, always the most responsible way to handle a pre-existing conflict.)
  • Honesty: prohibit false statements, ratings, reports or certificates in response to any test, certification or appointment process provided for by the city charter or the rules and regulations made under the charter; prohibit fraud in any form preventing the impartial execution of such provisions, rules and regulations.
  • Gifts: prohibit or limit gifts from those doing business with or seeking special benefits from the local government (usually referred to as “restricted sources”). This is the most important way in which an ethics program can address bribery and pay-to-play outside the criminal sphere, where these have become nearly impossible to prove. (Campaign contributions are usually not considered gifts, but it is possible to require withdrawal from a matter that may benefit a sizable campaign contributor.)
  • Representation and Appearances: these closely related provisions prohibit government officials and employees from representing others before their agency or board—or, for high-level officials, before the local government. The reason there are often two separate provisions is that an appearance is a much more concrete act, easy to prove, yet there are many instances where representation can occur without an appearance, and such representation creates just as great a conflict as an appearance.
  • Consulting Restriction: a consultant may not represent a person or entity other than the city in any matter, transaction, action, or proceeding in which the consultant participated personally and substantially as a consultant to the city. Nor may a consultant represent a person or entity in any matter, transaction, action, or proceeding against the interest of the city.
  • Confidential Information: prohibit the use of confidential information to benefit oneself or others. (Many ethics codes mistakenly prohibit all disclosure of confidential information. This is mistaken because the disclosure of confidential information, when disclosure does not benefit someone, does not involve a conflict of interest, and is sometimes even desirable.)
  • Post-Employment Restrictions: also known as a “revolving door” provision, applies certain ethics provisions to officials and employees usually for a limited period of time after they have left their government positions (the “cooling off” period). Other provisions, essentially pre-employment provisions, restrict representation or participation in matters an official was involved with before government service.
  • Misuse of Local Government Property: prohibit using or allowing others to use local government property for personal purposes, unless the use is generally available to the public (e.g., use of the library, sports facilities, etc.). Local government property includes not only concrete things, such as vehicles and equipment but also such things as expense reimbursements and government office computers.
  • Transactions with Subordinates and Political Activity. Political activity limitations and bans on soliciting employees prevent the use of subordinates for political purposes and help to prevent patronage systems. (In a certain sense, this is a subcategory of misuse of government property, except that it involves using government people for one’s personal benefit.)
  • Nepotism: provisions dealing with the conflict of hiring or managing an official’s family members.
  • Complicity and Knowledge: require the reporting of ethics violations and make complicity a violation. This requires officials to violate ethics laws alone and in secret, or take a big risk of being caught. (People who violate ethics laws rarely act in isolation. Usually, they act with the support, acceptance, or silence of their colleagues. The incentives for this are much reduced when people know they cannot count on those around them to keep their conduct secret.)
  • Whistleblower Protection: city employees (the people who know what’s going on) and others will be able to report violations without endangering their jobs and pensions.

Again, these are just a few examples of policies the commission will look into instituting here in Lakewood. The commission will need to look at what we have on the books already, look at Ohio Revised Code and think about what is best for our community, and recommend policies that make sense.

Where we are now:

The ordinance creating the commission is in the process of being drafted. Some features of the outlined ordinance include:

  • Diversity criteria: Requiring a certain number of LGBTQ, People of Color, Women, over 65 and under 30, as well as requiring a member with expertise in law and government finance.
  • Self-Perpetuation: Once the initial commission is appointed, the board will appoint new members, reducing outside influence.
  • Term Limits: No person can serve more than 2 consecutive terms and 3 total terms in a lifetime.

The current plan is to introduce the ordinance creating the Ethics Commission during the January 21st Lakewood City Council meeting. If you have comments for questions please feel free to call, text or email me anytime: 440-315-2852, tristan.rader@lakewoodoh.net

Tristan Rader
Member, Lakewood City Council