Ethical requirements of municipal office bearers under the Local Government Municipal System Act

Code of Ethics for Municipal Officers and Employees

A Clear and Comprehensive Code of Ethics

Ethics Codes

Ethical Requirements of Municipal Office-Bearers and Municipal Officials

According to the Municipal Systems Act of 2000 a municipality is thought to do a lot of things which include:- developing and producing conditions for the local community to partake in the interaction of the municipality; contributing to the capacity construction of neighboring communities to authorize them to contribute in its dealings (Department of Constitutional Development, 1998); expressing its resources and finances yearly towards the formation of suitable participatory circumstances and constructing such capacity.

The purpose of this act is to establish minimum standards of ethical conduct for municipal officers and employees to help ensure that the business of government is free from improper influence that may result from opportunities for private gain. At the same time, it is recognized that public service cannot require a complete divesting of all proprietary interest, nor impose overly burdensome disclosure requirements, if local governments are to attract and hold competent administrators (Momoniat, 2001). Although the assurance of ethical conduct will continue to rest primarily on the personal integrity of the officers and employees themselves, on the commitment of elected and appointed officials, and on the vigilance of their communities, the establishment of the standards and guidelines set forth in this act is an additional step toward providing the highest caliber of public administration for local governments and increased confidence in public officials (Gildenhuys, 2002). By requiring public annual disclosure of interests that may influence or be perceived to influence the actions of public officials, this act is intended to facilitate consideration of potential troubles before they happen, to reduce unwarranted suspicion, and to improve the responsibility of government to the people. It is the intent of this act that every governmental entity in the state not subject to the state ethics commission, the legislative ethics committee, or the provisions of subdivision 4 of section 211 of the judiciary law shall be subject to the state commission on local government ethics, established by this act (DBSA, 2000). It is also the intent of this act not to replace but rather to supplement other, consistent provisions of law regulating ethics in local government, such as section 107 of the civil service law, and to effect no change in the regulation of compatibility of public office (Atkinson, 2002; Bird, 2003).

Code of Ethics for Municipal Officers and Employees.

1.

General prohibition. A municipal officer or employee will not use his or her official position, or obtain or fail to implement any action, in a way which he or she recognizes or has reason to know may outcome in a personal financial advantage for any of the following people:

A.

the municipal officer or employee;

B.

his or her outside employer or business (Rural Development Unit, 2004);

C.

a member of his or her household;

D.

a customer or client;

E.

a relative; or F.

an individual from whom the officer or employee has accepted election campaign donations of more than $1,000 in the aggregate during the past twelve months (DBSA, 1998).

2.

Recusal. A municipal officer or employee shall promptly refuse himself or herself from acting on a matter before the municipality when acting on the matter, or failing to act on the matter, may financially benefit any of the persons listed in subdivision 1 of this section (Swilling, 1988).

3.

Gifts. A municipal officer or employee shall not solicit anything of value from any person who has received or sought a financial benefit from the municipality, nor accept anything of value from any person who the municipal officer or employee knows or has reason to know has received or sought a financial benefit from the municipality within the previous twenty-four months (Whelan, 2002).

4.

Representation. A municipal officer or employee will not stand for any other person in any matter that person has before the city nor stand for any other person in any material against the well-being of the municipality.

5.

Appearances. A municipal officer or employee shall not appear before any agency of the municipality, except on his or her own behalf or on behalf of the municipality (Rural Development Unit, 2004).

6.

Confidential information. Municipal officers or employees and former municipal officers and employees shall not disclose any confidential information or use it to further anyone's personal interests.

7.

Political solicitation. A municipal officer or worker shall not intentionally request or intentionally approve anyone else to request any minor of the officer or employee to contribute in an election campaign or donate to a political committee.

8.

Revolving door. A municipal officer or employee shall not appear or practice before the municipality, except on his or her own behalf, or receive compensation for working on any matter before the municipality, for a period of one year after the termination of his or her municipal service or employment; however, the bar shall be permanent as to particular matters on which the municipal officer or employee personally worked while in municipal service (Gildenhuys, 2002).

9.

Avoidance of conflicts. Municipal officers or employees shall not knowingly acquire, solicit, negotiate for, or accept any interest, employment, or other thing of value which would put them in violation of this code of ethics (Whelan, 2002).

10.

Inducement of others. A municipal officer or employee shall not induce or aid another officer or employee of the municipality to violate any of the provisions of this code of ethics.

11.

Transactional disclosure. Whenever a municipal officer or employee is required to refuse himself or herself under this code of ethics, he or she (Department of Constitutional Development, 1997)

shall promptly inform his or her superior, if any, shall promptly file with the municipal clerk a signed statement disclosing the nature and extent of the prohibited action or, if a member of a board, shall state that information upon the public record of the board, and III.

shall immediately refrain from participating further in the matter (Bird, 2003).

A Clear and Comprehensive Code of Ethics

The first pillar of an effective government ethics law is a code of ethics. Simple, sensible, straightforward and short, the code of ethics must be understandable by every official and employee -- without a lawyer (Atkinson, 2002). Most officials also prefer bright line -- that is, clear cut -- rules, whenever possible. The code should set a uniform, minimum standard applicable to every officer and employee of the government, from the street sweeper to the president, although certain high-level officials may have even stricter standards.

The code of ethics should be a comprehensive list of do's and don'ts that will guide and protect government officials. Indeed, it may be said that an ethics law is the best friend of government employees because it tells them what the rules are, helps them stay out of trouble and protects them against friends or supervisors or private employers who just "want a little favor" (Bahl, 2002). When seeking to convince a legislative body to enact an ethics law, this point should be stressed. Bribery laws and ant kickback laws by their very nature call into question the integrity of public officials. But ethics laws may be presented as supportive of public officials (Whelan, 2002).

To keep the code of ethics readable to the average lay employee, it should not contain any definitions or exceptions, which should, instead, appear in separate sections (Rural Development Unit, 2004). Indeed, definitions should be kept to a minimum and should never expand the duties of the public official as set forth in the code of ethics itself. The goal is this: A government employee who reads and follows only the code of ethics and ignores the rest of the ethics law will not violate that law (DBSA, 1998).

For example, the following gifts provision from New York State's ethics law for municipal officials illustrates a bad ethics provision because it is complicated and vague:

No government officer or employee shall . . . directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment (Swilling, 1988), hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part. . . . (Gildenhuys, 2002).

One court has struck this provision down as unconstitutionally vague. Compare the following gift provision: "No government officer or employee shall solicit or accept for less than fair market value anything of value from anyone doing business with the government" (DBSA, 2000). The exceptions section could then permit certain kinds of gifts, such as gifts from family members, gifts of minimal value, gifts accepted on behalf of the government and given to the government, and awards and plaques worth less than a specified amount. Thus, the government employee who reads and follows only the general provision but not the exceptions might forego accepting a permissible gift but would never accept an impermissible gift. This is how a code of ethics should work (Momoniat, 2001).

Ethics codes contain many different kinds of provisions, but the most common, and most important, provisions are the following:

General prohibition: on using one's government position for private gain for oneself, one's family, one's private employer or business, a recent private employer, a major private customer or client, or a person with whom one has a financial relationship (Bahl & Solomon, 2000). For example, a government contracting agent may not recommend that a government contract be awarded to her brother's company (Pycroft, 1998). This provision is the most basic ethics restriction and is intended to prevent government officials from using government resources for private purposes. The provision thus helps prevent waste, inefficiency, favoritism and corruption and helps reassure citizens that their tax dollars (and their officials) are working only for the public good, not for private interests (Bird, 2003).

Prohibited positions or ownership interests: in companies doing business with the government. For example, a scientist with the Department of Parks may not work for a company (or own a company) that does business with that department. This provision helps prevent divided loyalties since officials may otherwise feel compelled to help a company or business they work for or have an interest in. It protects officials against pressure from a private employer.

Gifts: from persons doing business with the government. For example, a Health Department official may not accept a gift from a nonprofit agency that contracts with the Health Department to run a government hospital, even if the official has nothing to do with the hospital. This provision is one of the most important ethics restrictions (Bahl, 2002). It protects against divided loyalties and against the public perception that an official who accepts such a gift is corrupt.

Confidential government information: revealed or used for private purposes while in government service or after leaving government service (Bahl, 2002). For example, a Transportation Department employee who learns about a plan to build a road may not tell a friend about that plan so that the friend could buy up land on which the road will be built. This provision protects government secrets, trade secrets of firms that do business with the government and the privacy of individual citizens (DBSA, 1998).

Appearances and representation: appearing before a government agency for a private person or representing a private person in a government matter. For example, a lawyer with the Licensing Division of the Department of Environmental Protection may not represent a private client before the department's Enforcement Division. This provision also protects against divided loyalties and against misuse of one's public office (or confidential government information) for a private purpose (Bahl & Solomon, 2000).

Private compensation: receiving pay from anyone other than the government for doing one's government job. For example, a government engineer who puts in long hours to complete the plans for a bridge may not receive a "salary supplement" from the private contractor hired by the government to build the bridge (Atkinson, 2002). This provision has the same basic purpose as the gifts restriction. It also helps ensure that the government knows and controls the compensation of its officers and employees (Whelan, 2002).

Inducement of others: causing another government official to violate the code of ethics. For example, a legislator may not tell his secretary that she should accept an expensive gift from a lobbyist. This provision helps prevent the injustice that results when a public official who violates the ethics law is punished while the public official who encouraged the violation goes unpunished (Atkinson, 2002).

Superior-subordinate relationship: having a financial relationship with a superior or subordinate. For example, a police captain may not start a business with one of his lieutenants or borrow money from him. This provision not only protects subordinates against financial pressure by superiors (who can refuse to loan money to one's boss?) but also helps prevent financial entanglements that undermine the chain of command or result in a subordinate being forced to take an inappropriate action because of the threat of financial retaliation by his or her superior (Rural Development Unit, 2004).

Political solicitation: asking subordinates (or private persons one deals with in one's government job) to make political contributions or engage in political activity. For example, the head of the Department of Finance may not send out a memorandum to all of the employees in her department, telling them they are expected to work on the governor's reelection campaign. Forcing public officials to engage in political activity or make political contributions undermines the independence and integrity of the public service and creates the perception that government exists to serve only those in power (Atkinson, 2002).

"Two-hats": holding a political party position and a government position at the same time. For example, the head of the Budget Office may not simultaneously serve as the chair of the local political party. This provision addresses the same problems as the restrictions on political solicitation (Momoniat, 2001).

Revolving door (post government employment): (1) Negotiating for a job with a private person or firm that one is involved with in one's government job. For example, the manager of a contract that the Department of Transportation has with a bridge cleaning company may not send her resume to the company. This provision helps prevent divided loyalty and the risk that the government employee may not vigorously perform his or her government job in order to obtain a new job with a private employer (DBSA, 2000). (2) Appearing before the government on behalf of a new employer within a set time (e.g., one year) after leaving the government. For example, an engineer with the Department of Public Works may not meet with (or telephone or write) anyone in the department on behalf of his new employer for one year after he has left government service (Gildenhuys, 2002). This provision, along with the general prohibition and the gifts restriction, is one of the most important provisions of an ethics code. It protects the government against former employees or their new employer receiving favored treatment, to the detriment of the public. It also protects against one company being preferred over another company merely because the first company hires former government employees and protects against the public perception of such favoritism. (3) After leaving government, working for a private person on a matter one worked on for the government (permanent bar) (DBSA, 2000). For example, an urban planner with the Department of Planning who helps evaluate a major proposed development may not leave the government and go to work for the developer, working on that same development. This provision provides the same protection as the other postemployment restrictions and also helps prevent the misuse of confidential government information (Bahl & Solomon, 2000).