Components of a Local Law
Establishing and Empowering a Board of Ethics
Introduction
Local government officials (herein includes employees) must
make significant decisions that affect directly the lives, property and
livelihood of people in the community.
They have business and personal relationships and therefore, may be
faced, with actual or apparent conflicts of interests and ethics issues. In some instances the conflict will be
obvious. In others, a judgment must be
made. Should a local official participate
in a determination when faced with a possible conflict or abstain? What are the standards whereby local
officials can make these difficult decisions?
State law provides few standards.
There is a balance that must be struck between recusal to
avoid apparent conflicts of interests and the duty of public officials to
perform the responsibilities of their offices.
Thus, the question of conflict of interests is a two-edged sword that
involves the balancing of two competing considerations. In making this determination, the official
should error on the side of caution.
How can an official be sure that his or her decision was
not influenced by personal interests?
There may be subtle but powerful psychological forces acting on these
officials in these circumstances. Most
important, when an official acts in the face of an actual or apparent
conflict of interests, the official cannot objectively defend himself against
charges of improper conduct by the media and members of the public. Even the appearance of impropriety must be
avoided.
The Need For A Board
of Ethics
In the field of ethics there is a vast area that has been left
unregulated by State Law. For example,
there are few ethics standards applicable to the many applications that are
received by the town board, planning board, zoning board of appeals, building
inspector and other municipal agencies.
This is a very large void.
Apparently, the State Legislature envisioned that local governments
would provide standards in local codes of ethics and make judgments by
establishing local boards of ethics.
Codes of Ethics
Although codes of ethics [1] can
provide specific standards, such as private employment restrictions and
prohibitions on holding of specific offices, there are many areas in which only
general standards are feasible. In these
areas, a municipal official must exercise judgment. He must balance his duty to exercise his
official functions against any apparent conflict of interests or ethics
problem.
In these situations, a board of ethics performs an
important function. If prior to taking
action, the municipal official has received an advisory opinion from the board,
he can objectively defend his decision to participate or recuse himself from
participation in the matter.
Most codes of ethics provide that officials should avoid circumstances
that may compromise their ability to make decisions solely in the public
interest, the so-called appearance of impropriety. In any event, questions will arise falling in
this category. These are questions that
involve the exercise of judgment by applying specific facts to determine
whether an official should recuse himself or perform his duties. Very often, these are subtle questions, which
are not amenable to easy answers.
Thus, a board of ethics serves an important role in
assisting municipal officials who inevitably will face an ethics problem at
some time during their tenure. But more
important, ethics codes and boards of ethics help to ensure the public that
governmental decisions are being made solely in the public interest.
BOARDS OF ETHICS
Unlike codes of ethics which are required by State law, local governments
are authorized but not required to establish boards of ethics. As indicated earlier, a board of ethics is
indispensable. Unfortunately, in our
view provisions of state law authorizing boards of ethics are in large part
ambiguous or inadequate. State law, is located
in section 808 of the General Municipal Law.
Section 808 is
Inadequate
Section 808’s purpose to provide advice to local officials
is compromised and inadequate in the following ways:
1. Members of the board of ethics
are appointed by the town board, whose members may request advisory opinions or
be subject to enforcement actions – we will suggest an independent nominating
committee.
2. The board can consist of as few
as 3 members, one of whom must be an officer or employee of the
municipality. This is not an independent
board.
3. The members of the
board of ethics serve at the pleasure of the appointing authority. Once again, their independence is
compromised.
4. It is not clear
under section 808 as to who may request an advisory opinion.
5. The ethics board has
no enforcement authority to the board of ethics.
Local Law Power
There is authority to amend or supersede Section 808 by
local law. Because your town attorney
should advise you, the footnoted material is provided as a guide for your
municipal attorney. [2]
Content of a Local
Law Establishing a Board of Ethics
1. How should
members be selected?
Although the town board has ultimate responsibility for
selection of members of a board of ethics, town board members may be subjects
of inquiries by the board of ethics and, therefore, should be insulated to the
extent possible. A committee composed of
respected residents of the town, that is bipartisan, or nonpartisan, could
nominate persons for consideration by the town board to avoid this problem.
2. No
Officers or Employees on Board
The local law should eliminate the requirement that a town
officer or employee be a member of the board of ethics in order to establish a
board that is truly an independent body.
This would encourage officers and employees to request advisory opinions
from the board. An opinion of the
Attorney General concluded that a local government may by local law change the
composition of a local board of ethics to eliminate the requirement that a
local officer or employee be a member of the board. Informal Opinion No. 86-44.
3. Composition
and Terms
Also, the board of ethics should be composed of at least 5 or
7 members with alternates to serve in the event of an absence or conflict of
interests. A majority vote of the entire
board of ethics (not only those present) should be required to take
action. Board members should have terms
of office to protect them from arbitrary removal. The Board should establish rules of procedure
and choose a chairman.
4. Advisory Opinions to Officials and
Employees Faced with Possible Conflicts
If an official with a possible ethics problem has received
an advisory opinion from the board of ethics that participation in a matter will
not violate ethics standards, the official can objectively defend his or her
participation or need to abstain. This
is an important role that a board of ethics can serve in providing direction to
public officials who sometimes are faced with difficult decisions.
Advisory Opinions help to ensure the public that
governmental decisions are being made solely in the public interest.
5. Investigative
and Enforcement Authority
A local law may authorize the board of ethics to receive
complaints from any officer or employee of the town alleging that other
officers or employees have violated ethics standards, determine whether these
complaints should be pursued, and, if appropriate, conduct investigations. The board should immediately dismiss a charge
without basis. Further, a board of
ethics could be given enforcement authority through the administering of
penalties.
Under State law, a body that has been given the authority
to conduct investigations may issue subpoenas for witness testimony, documents
and other evidence. CPLR, §2302(a). Thus, a board of ethics with the
authority to conduct investigations may also be given subpoena power.
There is ample authority for enforcement. Towns are authorized to provide for the
enforcement of local laws. They may
provide for enforcement through legal or equitable proceedings and may
prescribe that violations constitute offenses or infractions and provide for
the punishment of violators by civil penalty or fine. Municipal Home Rule Law, §10(4)(b). A local law providing for enforcement
must include the right of the officers or employee to appear with legal counsel
to defend him or herself.
6. Discipline
and D.A.
In some instances a board of ethics with enforcement
authority, including the power to levy fines, may not have jurisdiction and
will have to refer matters to the town board.
If an employee is subject to disciple under sections 75 and 76 of the Civil
Service Law or if disciplinary procedures are set forth in a collective
bargaining agreement those provisions would control. Also, evidence of a crime should be referred
to the District Attorney.
Procedural Rules
The local law should authorize the board of ethics to
promulgate rules of procedure. The
following are suggested:
1.
The board of ethics should only
permit requests for advisory opinions from officers and employees having the
apparent conflict.
2.
The opinion request should be in
writing, clearly state the question and provide relevant facts.
3.
The board of ethics may request
additional information or require that the individual making the inquiry appear
before the board to clarify ambiguities or provide additional material.
4.
In considering inquires the board
should review the municipalities code of ethics, consider opinions of the
attorney general and comptroller and relevant provisions of the state General
Municipal Law.
5.
The advisory opinion should only
answer the question raised and only include facts that are relevant to its
findings.
6.
In considering the inquiry, the name
of the individual seeking the advisory opinion should be kept confidential,
thus encouraging inquiries.
7.
The board of ethics should have
access to an attorney assigned to it by the town board.
Application of Freedom
of Information Law to the Advisory Function of a Local Ethics Board
Boards and commissions are subject to Freedom of
Information Law (FOIL). A board of
ethics may, however, withhold records when disclosure would result in an
unwarranted invasion of personal privacy.
A board may also withhold inter-agency or intra-agency
records, except statistical data, staff instructions that affect the public,
final agency policy or determinations, or external audits. Specifically, an agency may deny access to opinions,
advice, evaluations, deliberations, proposals, or recommendations because these
are preliminary, rather than final determinations.
Applying these principles an advisory opinion of a town
ethics board would be exempt from disclosure.
The officer or employee may want to voluntarily release the opinion or
ask the board of ethics to state its conclusions. In this way, he can objectively defend his
decision to participate or abstain.
Application of Open
Meetings Law to a Local Ethics Board
The Open Meetings Law (OML) does not apply to
quasi-judicial proceedings. As indicated
earlier, ethics boards are empowered to investigate complaints, conduct
hearings, make determinations and impose sanctions. This is a quasi-judicial function exempt from
the OML.
Section 105(1) of the Open Meetings Law specifies subjects
that may be discussed in executive session.
Among the matters that may be considered in executive session are those
that relate to a specific investigation or criminal prosecution, “the medical,
financial, credit or employment history of a particular person or corporation,
or matters leading to the appointment, employment, promotion, demotion,
discipline, suspension, dismissal or removal of a particular person or
corporation.” An inquiry relating to a
particular person and falling within one or more of these subjects may be
considered in executive session.
In conclusion, a board of ethics is an indispensable tool
to help maintain confidence in the integrity of government.
[1] See our website – nytowns.org – for sample codes of ethics.
[2] Changing Composition of Board of Ethics and Powers by
Local Law
A town can reconstitute its local ethics board by
enacting a local law. Towns are
authorized to adopt and amend local laws relating to their property affairs or
government and in relation to the duties, qualifications, number, terms of
office and other terms and conditions of employment of their officers and
employees. Municipal Home Rule Law
§10(1)(i) and (ii)(a)(1). This is
sufficient authority to permit a town to reconstitute its board of ethics.
A limitation on the enactment of a local law is that
it must be consistent with a general State Law.