Board of Ethics - Day 2

I've just returned from the second meeting. They were able to agree on their rules and have sent it on to the for approval. So before I get started, let me state for the record that I'm still not overly comfortable with the amount of oversight the council has over the board. I'm not sure, but I believe this is the only city board that needs to have their rules approved by the council.

So first the good news. The board has proposed that they can question a person making a complaint (for clarification) before determining whether to accept or dismiss the complaint. And equally important, at the board’s first meeting they discussed what merits a public hearing. How to determine if a complaint is "frivolous." The standard that they adopted is: “Any Board determination that a complaint does not merit scheduling of public hearing, shall be made by a unanimous vote of the members present at the meting.” Good for them. A very high threshold to deny moving forward with a public hearing of the accused.

One concern of the board was the right for both the complainant and accused to have attorneys and the right for the attorneys to cross examine witnesses. While initially I felt this could be overly burdensome for the board, (the city solicitor) took the time to explain to me why this is so important. After listening to our solicitor's response to my concern of turning a hearing into a court case, I now understand why this is prudent. It is because of the serious consequences that can ensue and the potential harm to the accused’s reputation.

As stated earlier, I still have concerns about the ability of the board to function as a separate entity and not an arm of the council. All the board's determinations are sent to the council for a final ruling. In the event of a conflict of interest where three or more board members have a conflict, the complaint is sent back to the council. During discussions at the board's first meeting the members asked about the appointment of alternates to address this situation. However, this would be a change in the makeup of the board and would have to be approved by the council. The city council should act on this at the earliest possible date to avoid the possibility of having to hear and rule on ethics complaints directed at their own members.

There's also the issue of appointments to the board. While there are other communities that have similar methods of appointing board members, there are also alternatives that would provide the community with more of a sense of the board's independence. Community groups or individuals could make nominations and the board - not the council - would have the final say. Now that the board has been constituted, perhaps before any new members are appointed by the mayor and city manager, this would be a good time for a rules change. I would suggest that the Board be allowed to determine a method that would leave the replacement of Board members in the hands of the board. 

This board has a serious obligation to the community and to those appearing before them. Both the complainant and the accused. With that in mind I expect the board to assert its independence and not be looking over their shoulders concerned with what the council may or may not think. I would caution the board to limit their contact with the council and to only ask for clarifications through a third party. I would ask the council to have a hands off stance regarding the board and allow the Board the widest possible latitude in interpreting the city’s Ethics Ordinance.

I believe it is important for the Board of Ethics to assert their independence from the council from day one. And it is my expectation that all those who come before the board will be given equal considerations, regardless of their ability to pay for representation.