Charter Commission — Portland, ME
Date: 2022-03-30
Time: 18:00

City of Portland
 Charter Commission Agenda

 Charter Commission Meeting March 30, 2022 at 6:00 pm
Due to the existence of an "emergency or urgent issue", the Charter Commission & its Committees will conduct meetings
by remote methods/technology at the Zoom link provided below, in accordance with the requirements of 1 M.R.S. section
403 -B and the Charter Commission Remote Participation Policy.

Allow your computer to install the free Zoom app to get the best meeting experience. If you are not able to attend live, a
recording will be available following the meeting in our Agenda Portal.

For public comment, you will need to use the "raise your hand" feature. To raise your hand via the telephone, please hit
*9. You will be unmuted by the host when it is time for public comment.

 1. Zoom Information
 a. This meeting will be held remotely pursuant to the Remote Meeting Policy adopted
 by the Charter Commission and as authorized under 1 M.R.S. 403-B because of the
 existence of an emergency or urgent issue that requires the committee to meet by
 remote methods. Allow your computer to install the free Zoom app to get the best
 meeting experience. If you are not able to attend live, a recording will be available
 following the meeting.
 For public comment, you will need to use the “raise your hand” feature. To raise your
 hand via the telephone, please use *9. You will be unmuted by the host when it is
 time for public comment.
 You are invited to a Zoom webinar.

 Please click the link below to join the webinar:
 https://portlandmaine-
 gov.zoom.us/j/83616160481?pwd=cEsvM2NNT0I1aiswemxhOG00MlBUUT09
 Passcode: 402766
 Or One tap mobile :
 US: +13126266799,,83616160481#,,,,*402766# or
 +19292056099,,83616160481#,,,,*402766#
 Or Telephone:
 Dial(for higher quality, dial a number based on your current location):
 US: +1 312 626 6799 or +1 929 205 6099 or +1 301 715 8592 or +1 346 248
 7799 or +1 669 900 6833 or +1 253 215 8782
 Webinar ID: 836 1616 0481
 Passcode: 402766
 International numbers available: https://portlandmaine-gov.zoom.us/u/kZd02gKTx
2. Call to Order (6:00-6:05 pm)
3. Review and Approval of Minutes (6:05-6:10 pm)


 a. Approval of Draft March 23, 2022 Charter Commission Meeting Minutes

4. Deliberation and Vote on Governance Models (6:10-9:00 pm)
 a. Description: Commissioners will deliberate and vote on reforms to the basic structure
 of Portland's government.
 Relevant document(s):
 a. Chann-O"Brien-Buxton-Washburn-Sheikh-Yousef-Kebede Overlap
 b. Chann-O'Brien Proposal
 c. Amendment to Chann-O'Brien Proposal (amended by Commissioner Buxton,
 Sheikh-Yousef, Buxton, Kebede)
 d. Power point

 Older documents
 d. Commissioner Sheik Yusuf's governance model proposal
 e. Matrix comparison of two models
 f. Commission Barowitz's organizational charts
 g. Relevant research and interviews
 (Breaks: 7:05-7:55; 8:55-9:00 pm)
 Public hearing, deliberation, and vote on Code of Ethics proposal from Procedures
5.
 Committee (9:00-9:30 pm)
 a. Description: Commissioners will hold a public hearing, then deliberate and vote on
 this proposal.

 Relevant document(s):
 a. Proposal on Code of Ethics
6. Vote on final Language for Citizen Police Oversight Board (9:30-10:30 pm)
 a. Revised Citizen Police Oversight Board
7. New Business
8. Adjourn

City of Portland
 Charter Commission Agenda

 Charter Commission Meeting March 30, 2022 at 6:00 pm
Due to the existence of an "emergency or urgent issue", the Charter Commission & its Committees will conduct meetings
by remote methods/technology at the Zoom link provided below, in accordance with the requirements of 1 M.R.S. section
403 -B and the Charter Commission Remote Participation Policy.

Allow your computer to install the free Zoom app to get the best meeting experience. If you are not able to attend live, a
recording will be available following the meeting in our Agenda Portal.

For public comment, you will need to use the "raise your hand" feature. To raise your hand via the telephone, please hit
*9. You will be unmuted by the host when it is time for public comment.

 1. Zoom Information
 a. This meeting will be held remotely pursuant to the Remote Meeting Policy adopted
 by the Charter Commission and as authorized under 1 M.R.S. 403-B because of the
 existence of an emergency or urgent issue that requires the committee to meet by
 remote methods. Allow your computer to install the free Zoom app to get the best
 meeting experience. If you are not able to attend live, a recording will be available
 following the meeting.
 For public comment, you will need to use the “raise your hand” feature. To raise your
 hand via the telephone, please use *9. You will be unmuted by the host when it is
 time for public comment.
 You are invited to a Zoom webinar.

 Please click the link below to join the webinar:
 https://portlandmaine-
 gov.zoom.us/j/83616160481?pwd=cEsvM2NNT0I1aiswemxhOG00MlBUUT09
 Passcode: 402766
 Or One tap mobile :
 US: +13126266799,,83616160481#,,,,*402766# or
 +19292056099,,83616160481#,,,,*402766#
 Or Telephone:
 Dial(for higher quality, dial a number based on your current location):
 US: +1 312 626 6799 or +1 929 205 6099 or +1 301 715 8592 or +1 346 248
 7799 or +1 669 900 6833 or +1 253 215 8782
 Webinar ID: 836 1616 0481
 Passcode: 402766
 International numbers available: https://portlandmaine-gov.zoom.us/u/kZd02gKTx

 Page 1
2. Call to Order (6:00-6:05 pm)
3. Review and Approval of Minutes (6:05-6:10 pm)


 a. Approval of Draft March 23, 2022 Charter Commission Meeting Minutes

4. Deliberation and Vote on Governance Models (6:10-9:00 pm)
 a. Description: Commissioners will deliberate and vote on reforms to the basic structure
 of Portland's government.
 Relevant document(s):
 a. Chann-O"Brien-Buxton-Washburn-Sheikh-Yousef-Kebede Overlap
 b. Chann-O'Brien Proposal
 c. Amendment to Chann-O'Brien Proposal (amended by Commissioner Buxton,
 Sheikh-Yousef, Buxton, Kebede)
 d. Power point

 Older documents
 d. Commissioner Sheik Yusuf's governance model proposal
 e. Matrix comparison of two models
 f. Commission Barowitz's organizational charts
 g. Relevant research and interviews
 (Breaks: 7:05-7:55; 8:55-9:00 pm)
 Public hearing, deliberation, and vote on Code of Ethics proposal from Procedures
5.
 Committee (9:00-9:30 pm)
 a. Description: Commissioners will hold a public hearing, then deliberate and vote on
 this proposal.

 Relevant document(s):
 a. Proposal on Code of Ethics
6. Vote on final Language for Citizen Police Oversight Board (9:30-10:30 pm)
 a. Revised Citizen Police Oversight Board
7. New Business
8. Adjourn




 Page 2
DRAFT




 City of Portland Charter Commission
 Meeting Minutes
 March 23, 2022 (Remote via Zoom)

1. Zoom Information

 The meeting was conducted as a remote meeting by Zoom videoconference in accordance
 with the Commission’s Remote Participation Policy and State law (1 M.R.S. §403-B).

2. Call to Order

 Chair Kebede called the meeting to order at 6:03 p.m.
 Commissioners present were Barowitz, Buxton, Chann, Eglinton, Houston, Kebede,
 Lizanecz (joined 6:10 p.m.), O’Brien, Sheikh-Yousef, Stewart-Bouley, Washburn, and
 Waxman. (Quorum established)

3. Review and Approval of Minutes

 On motion by Commissioner Waxman, seconded by Commissioner Eglinton, the
 Commission voted to approve the draft meeting minutes of March 16, 2022 by roll-call vote
 of 11-0.

4. Deliberation on Governance Models

 Commissioners deliberated on reforms to the basic structure of Portland’s government.

 Commissioner Chann made a motion to move the Chann/O’Brien Governance Compromise
 and the Amended Chann/O’Brien Governance Compromise up on the agenda to receive a
 first reading and clarifying questions so that these could be included in further deliberation
 on this topic. The Commission voted 10-2 (Washburn, Sheikh-Yousef opposed) to approve
 the motion.

 A discussion followed as to how to proceed: conduct a first reading and then postpone the
 discussion to next week, or first reading and then discuss governance components while the
 facilitators are present.



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DRAFT
 Commissioner Chann began presenting the Governance Compromise. It incorporates the
 mayor as chief executive officer as favored in the straw poll. The mayor also would chair the
 city council but would only vote in event of a tie; he likened this to the role of the Vice
 President with regard to the US Senate. The mayor would have a more significant role in
 development of the City budget, and would hire the “constitutional officers” subject to
 council confirmation. The city manager would be responsible for day-to-day administration.

 Commissioner O’Brien added that the mayor and at-large councilors would serve as the
 executive committee to would provide the channel for official communications, and that the
 mayor would be at the table for economic development discussions.

 Commissioner Eglinton questioned what the mayor’s “supervision” over the city manager
 entailed, and the response was oversight, not micromanagement. Commissioner Barowitz
 asked what oversight or checks and balances there would be over each branch, and the
 response was that each branch – legislative and executive – would serve as a check on the
 other. The proposal is silent on the ombudsman/public advocate concept for now.
 Commissioner Barowitz also asked about the use of “city manager” rather than “city
 administrator”; Commissioner O’Brien responded that whatever the title, the position is the
 City’s chief operating officer.

 Chair Kebede presented the Amended Chann/O’Brien Governance Compromise. The mayor
 no longer would be a council member or have a council vote, but would be the chief
 executive officer as in Westbrook, ME and in Burlington, VT. A professional administrator
 would be supervised by the mayor. The mayor would be to the City as the Governor is to the
 State of Maine. As to whether additional oversight is needed, the Chair noted that the
 executive and legislative branches in the cities cited oversee each other successfully. The
 mayor would be the City’s official representative with regard to other entities, including the
 Governor and Legislature.

 The commissioners agreed to act at the next meeting on issues not addressed by the
 proposals, to move expediently by consensus rather than by formal motion through a list of
 issues to be assembled by Commissioner Washburn. The Commission then would begin to
 promptly prepare and review the text for the Charter revision to effect the changes.

5. Public Hearing, Deliberations, and vote on Clean Elections proposal from Elections
 Committee

 Commissioner Buxton presented the Clean Elections proposal.

 The Commission’s legal advisor recommended an amendment to remove Section 13.a. to
 avoid constitutionality concerns.

 The Commission conducted a public hearing. Among the comments received was a rebuttal
 by John Brautigam, Esq. to the legal advice provided to the Commission. The Commission’s
 legal advisor said he would review the authorities cited by Atty. Brautigam, and the
 Commission proceeded subject to this issue’s later resolution.


{P2001564.1} 2


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DRAFT

 Commissioner O’Brien moved to adopt the proposal, seconded by Commissioner Washburn.
 Following deliberation, the Commission considered several amendments offered by
 Commissioner O’Brien.
 1) to strike or be silent on whether a candidate participating in clean election program
 must participate in a city-sponsored debate, seconded by Commissioner Eglinton;
 amendment failed on a tie vote of 5 yes (O’Brien, Eglinton, Chann, Washburn,
 Waxman), 5 no (Kebede, Huston, Sheikh-Yousef, Lizanecz, Buxton), 1 abstention
 (Barowitz)
 2) to amend language regarding the database for contributions so that it would be
 determined by the city council; the amendment was seconded by Commissioner
 Washburn and then withdrawn.
 3) to add a concept to section 13(a) to prevent for-profit and non-profit corporations
 from achieving financial gain through pending or future contracts and business when
 make contributions. Commissioner Washburn stated that the ethics code may be a
 better place for this prohibition. The amendment passed on a vote of 10 yes (O’Brien,
 Eglinton, Chann, Kebede, Huston, Sheikh-Yousef, Lizanecz, Buxton, Barowitz,
 Waxman), 1 no (Washburn)

 Following a general discussion the Commissioners voted 11-0 to approve the motion as
 amended (Commissioner Stewart-Bouley absent).

6. Public Hearing, Deliberations and vote on Redistricting proposal from Elections
 Committee

 Commissioner Chann presented the Elections Committee proposal to increase the number of
 district councilors from 5 to 10, with 3 at-large seats, for a total of 13 councilors. District
 lines would be drawn by the council and adjusted as now happens under a State law requiring
 a reapportionment ordinance after each decennial census.

 Commissioner Waxman recognized that smaller districts would make it easier to conduct
 participatory budgeting, but was not sure the voters would support 13 councilors and 10
 districts.

 Commissioner Washburn favored an odd number of councilors, and expressed that increasing
 the number of councilors increases the connection between council members and those they
 represent.

 The Commission conducted a public hearing.

 In deliberation, Commissioner O’Brien explained that a larger council would have more
 mechanisms to allow more councilors to introduce legislation and would reduce the
 overburdening of councilors with committee assignments and work that now occurs. He
 added that tie votes can be addressed by allowing the mayor to vote, and that a 12-member
 council would allow an even number of councilors to be on the ballot each year.
 Commissioner Washburn suggested corresponding increases in the number of school board


{P2001564.1} 3


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DRAFT
 members for the same reason. The Commission’s legal advisor noted that the number of
 districts is set by the existing Charter at five, and that the number of city councilors and of
 school board members is based on electing one from each of those districts. He explained
 that he had consulted with the school board’s legal counsel, who had spoken with the
 Superintendent about increasing the number of school board district seats in step with
 increases in city council district seats; while the school board had not considered the
 question, the Superintendent though it would agree to an increase for increased
 representation and parity. The Commission’s legal advisor also heard from the city clerk who
 thought it would be a “nightmare” to administer municipal elections with different school
 and council districts.

 Commissioner Waxman asked where the proposal came from, and several Commissioners
 responded that they saw there was a lot of interest among voters to broaden representation
 and diversity and to make the council more directly representative. Commissioner Barowitz
 said that he heard the same from voters, but was concerned it would create single-issue
 candidates.

 A friendly amendment to reduce the numbers to 6 district and 3 at-large councilors was
 declined.

 Commissioner Chann moved to adopt the proposal, seconded by Commissioners Washburn.

 Commissioner O’Brien moved to amend the motion to 12 councilors, with 9 district and 3-at
 large, with a chair who only votes to break a tie. Commissioner Chann seconded the
 amendment, which passed by a vote of 6 (O’Brien, Buxton, Lizanecz, Eglinton, Waxman,
 Chann) to 5 (Kebede, Barowitz, Houston, Washburn, Sheikh-Yousef).

 The Commission clarified that this vote is only about the city council, and approved the
 motion as amended by vote of 8 (O’Brien, Buxton, Lizanecz, Chann, Kebede, Barowitz,
 Houston, Washburn) to 3 (Waxman, Sheikh-Yousef, Eglinton).

7. Public Hearing, Deliberations, and vote on Code of Ethics proposal from Procedures
 Committee

 Because additions discussed at the last meeting did not make it into the version of the Code
 of Ethics proposal for this evening’s meeting, this item was tabled to the next meeting by
 consensus.

8. Public Hearing, Deliberations and vote on Participatory Budgeting Proposal from
 Procedures Committee

 Commissioner Waxman introduced this proposal, explaining that after reviewing several
 participatory budgeting programs, the Procedures Committee though it best to prepare a brief
 outline of the measure in the Charter and to leave development of the details of the actual
 participatory budgeting process to the city council. Through clarifying questions,
 Commissioners established that this proposal is limited to the City budget but Commissioner


{P2001564.1} 4


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DRAFT
 O’Brien noted that nothing would stop the school board from similarly adopting participatory
 budgeting.

 On motion by Commissioner Waxman, seconded by Commissioner Washburn, the
 Commission approved the proposal by vote of 10-0 (Commissioners Stewart-Bouley and
 Lizanecz absent).

9. First Read of School Budget Process Proposal from Education Committee

 Commissioner Houston presented the first reading of this proposal. The purposes of the
 proposal are to make it easier for the public to understand and to participate in the school
 budget process, and to increase or achieve parity of the school board with the city council,
 which adopts its own budget. In this proposal, the city council is removed from the budget
 process except to send the school budget to a budget validation referendum; if at some time
 the voters decide to cease the budget validation referendum, then the City would instead hold
 a municipal school budget referendum. The proposal establishes an 8-member Joint
 Committee on Budget Guidance, with four councilors and four school board members
 appointed by the mayor and school board chair, respectively, to develop guidance for the
 City and school budget over the next two years prior to submission of a school budget.
 Asked by Commissioner Waxman how this proposal came to be, Commissioner Houston
 noted that he’s seen much budget back-and-forth recently, and that he also heard concerns
 from voters. Commissioner Eglinton added that the Joint Committee portion of the proposal
 came out of his experience on the school board and with the school district as well as his
 concern with parity.

 The Commission’s legal advisor pointed out that unlike the three-part school budget process
 under State law (school board proposes budget, legislative body votes on budget, voters vote
 at budget validation referendum), this proposal bypasses the legislative body entirely and
 goes directly to the budget validation referendum. This could lead to budget invalidation,
 and the issue would be locked into the Charter. Chair Kebede asked the Education
 Committee to work with legal counsel to see if the concerns could be addressed.

10. First Read of Capital Improvement Program Process Proposal from Education
 Committee

 Commissioner Eglinton presented the first reading of this proposal. Under the current
 Charter, the city manager’s duties include preparation of a rolling 5-year capital
 improvement program (CIP) plan that includes both short-term and longer-term projects and
 presentation of that CIP to the city council. This proposal expands that obligation by
 directing the city manager and the superintendent to jointly prepare that CIP and to present it
 to a joint meeting of the city council and school board to provide a comprehensive view of
 proposed public capital improvement projects in Portland.




{P2001564.1} 5


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DRAFT
11. New Business

 Commissioner Barowitz suggested the creation of a constitutional officer position to serve as
 an auditor overseeing City finances to avoid fraud and waste. This person might be a new
 hire or might be additional responsibility for an existing City staff person, and that resulting
 savings and revenue otherwise achieved might pay for new measures under the Charter
 revisions.

 Chair Kebede reminded Commissioners that time is growing short to complete the
 Commission’s work and asked Committees to prepare narratives explain the purpose and
 process for each proposal.

12. Adjourn

 On motion by Commissioner Washburn, seconded by Commissioner O’Brien, the
 Commission voted to adjourn by roll-call vote of 9-0. The meeting adjourned at 11:00 p.m.




{P2001564.1} 6


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Governance Committee Colleagues,

I present the below proposal so that we can consider a system of government for Portland that
more fully moves us away from our current undemocratic City Manager. It was developed based
on the principles I told the voters I would represent, one-on-one feedback from fellow
commissioners who also ran on these principles, testimony from our committee hearings
(although we need to expand that input as described below), emails and comments many of us
have received, my own research, and input from community members.

The core components of the model I am proposing are:

 • Democracy first;
 • Strong checks and balances between both branches;
 • Efficient administration;
 • Public accessibility/accountability.

What I outline is based on the Mayor-Council forms of government that almost all other states in
America have in their largest cities (see attached document). Of particular note, I looked at the
eight other northeast states, which all have elected mayors in their largest city (From Bridgeport
to Manchester to Providence to Boston, etc.). I also looked closely at Wilmington, Delaware.
Wilmington is perhaps the closest to Portland in terms of population vs ratio to the state (70,000
in Wilmington/1,000,000 in Delaware). It is also Delaware’s service center, economic engine,
and one of its most diverse cities, much like Portland.

That said, no individual model from another city will work perfectly for us. After reviewing and
discussing the below proposal, I would suggest the committee invite a number of elected
mayors from neighboring states to join us by zoom. We could then get their direct input on how
their model works and what they would advise as we develop ours.

As you will see, I have tried to address some of the committee concerns regarding the day-to-
day operations and ensuring that our elected Mayor does not get bogged down in the minutia,
while still ensuring public accountability that services are being implemented according to our
values.

Additionally, please note that my proposal contains an elected public advocate (PA). The public
advocate position, as you’ll see, is a bit of a bridge, but also creates third party accountability. It
will be able to fulfill some of the roles that were described in the committee’s version of a council
chief of staff. The particulars are outlined below.

Thanks, and I look forward to discussing this further.

-Nasreen




 Page 9
Strong Council & Elected Mayor

Powers of the Council

City Council becomes the chief policy-making body of the city, including powers to enact all
policy proposals, approve/reject all nominees for department heads and boards/commissions,
approval of the city budget and all revenue changes (including ongoing scrutiny of
expenditures/revenues), and emergency power approvals (further detail of these powers
described in sections below). Councilors serve three-year terms, rotating, sworn in on the first
Monday in January after the November election. No term limits.

City Council elects 2-year Council President from its own ranks with majority vote (removal by
2/3rds). The Council President is the voice of the Council and meets with the Mayor regularly.
President chairs Council meetings, sets Council rules/agenda, and creates/appoints/removes all
standing committees/committee members/chairs. The President may create and appoint
members to any ad-hoc committee to investigate a particular policy and/or investigate
government malfeasance. Plus, any/all other duties bestowed upon the office by a majority vote
of the Council. Council Presidents may not serve more than 4 consecutive terms.

The City Council will have its own independent staff to meet its responsibilities, policy
development, public communications, and administrative tasks. Council’s budget will be
determined within the annual city budget proposed by the Mayor and reviewed in accordance
with the budget process.

Powers of the Mayor

Elected Mayor ensures the implementation of policy and oversees the efficient administration of
the city. No longer a member of the Council and does not have a vote. Does have the ability to
propose policy for Council review and must sign/veto all legislation enacted by the Council
(described below).

The Mayor will nominate for Council review and approval a “City Administrator” who will be
responsible for the day-to-day supervision of all Department Heads, also nominated by the
Mayor, and city operations. The “City Administrator” will serve under the direction of the Mayor,
however, will be required to attend any Council Committee meeting when a committee chair
requests it.

Mayor is elected on the same cycle as the US President (effective 2024) and sworn in on the
first Monday in January after the November election. May serve only two consecutive 4-year
terms.

Nomination and Oversight of Department Heads

The Council reviews/approves/rejects all Mayoral nominees of Department Heads to lead city
staff (Chief of Police, Director of Public Works, Director of HHS, etc.). Council approves/rejects
each nominee with majority vote after the council committee of jurisdiction holds public
hearings/vote on each nominee (for instance: Public Safety Committee reviews nominee for
Chief of Police). Staff below department heads are hired by their respective supervisors and do
not need Council approval.




 Page 10
All Department Heads, after review/approval by Council, will report to and serve at the will of the
Mayor after approval by Council, with day-to-day oversight administered by the City
Administrator. All Department Heads, or designee, are required to provide all requested
information to council committees of jurisdiction and testify to committees when called upon. All
Department Heads may request to attend a Committee meeting to report on any matter
pertaining to the committee’s jurisdiction.

Policy Development

All policy proposals must go through Council for public review/amendment/final disposition.

All Councilors and the Mayor will have the right to submit policy proposals for Council
consideration/review/action. All Department Heads, or their designee, will be available to
elected officials for the purpose of any proposed policy development. (If a staff member or
constituent wants to propose an idea for Council consideration, they can ask an elected official
to sponsor the proposal).

All policies, ordinances, orders, expenditures, revenue changes, etc. approved by Council must
then be signed into law by the Mayor or vetoed within 10 days of passage. Council may override
all vetoes within 15 days, with 75%+ super-majority. If Council overrides, policy is enacted. If
council fails to override, policy is not enacted. If Council fails to override, Council may amend to
generate 75% support of Council or to gain Mayor’s signature.

Council actions that solely impact the operations of the Council (rules, procedures, committee
structures, vacancies, etc.) or that are non-binding statements do not need to be signed by the
Mayor nor can they be vetoed.

Development, Passage and Implementation of Budgets

Mayor develops/proposes City budget, excluding education expenditures, for Council
consideration. Council amends/approves after public hearings. Same veto standard.

The Mayor oversees implementation of the City budget through Department Heads. Council
monitors implementation of the budget through committees of jurisdiction. May request that any
Department Head under their jurisdiction attend their committee meeting to present budget
progress and answer any questions.

Mayor develops/proposes schoolwide education budget, in consultation with School Board
Chair and Superintendent, for School Board consideration. School Board amends/approves
after public hearings and sends to voters for approval. The city council no longer votes on the
school budget.




 Page 11
Compensation

Council salaries increased to $17K a year (from $6K), with annual COLA based on CPI (likely
proposal from Procedures Committee member). Current benefits (HC/Pension, etc.) not
changed. Commensurate for School Board members.

Mayor salary increased to twice the average income for a family of four in Portland as defined
by the annual census (up from 1.5x to recognize the increased responsibilities). Adjusted at the
start of each new term.

Succession Plan

In the event of a vacancy or incapacity of the Mayor, the “Elected Public Advocate” (described
below) is first in line to replace the Mayor. Council President is second.

In the event of a Council or School Board vacancy, the Mayor nominates three people for
consideration. Council or School Board may only seat from the list of nominations. Should they
reject all three, the Mayor must nominate three others. Once seated, the nominee remains in
place until the next general election. The seated individual may run for the seat.


Elected Public Advocate

The Elected Public Advocate serves as an independent ombudsperson for city government
whose mission is to improve the transparency, responsiveness, and accountability of City
government. An additional set of eyes and ears on the council and mayor branches.

Public Advocate is elected on the same cycle as the US President (effective 2024). May serve
only two consecutive 4-year terms.

Duties of the Public Advocate

Public Advocate is charged with meeting constituent needs (direct or referred by any other
elected official), providing outside review of city agencies, responding to FOIA requests,
investigating citizens' complaints about city services, and making proposals to address
perceived structural shortcomings or failures for Mayor or Council consideration. Public
Advocate has authority to propose structural changes to city government and/or greater
oversight controls for Council deliberation and consideration. In the event of a vacancy or
incapacity of the mayor, the Public Advocate is first in line to become Mayor until the end of the
elected term.

Nomination of the City Clerk

The City Clerk, overseeing elections and Clerk functions, becomes an independent office of the
executive and legislative branches by being nominated by the Public Advocate at the beginning
of their term. City Clerk is approved/rejected by the Council. Once approved, the City Clerk
reports to the Public Advocate and may not be removed without recommendation by the Public
Advocate and 66% approval by the Council. The City Clerk is not term-limited and may cross
over administrations.




 Page 12
Nomination of the City Attorney

The City Attorney, providing legal advice to the Council/Mayor and constituents, becomes an
independent office of the executive and legislative branches by being nominated by the Public
Advocate and approved/rejected by the Council. Once approved, the City Attorney reports to the
Public Advocate and may not be removed without recommendation by the Public Advocate and
66% approval by the Council. The City Attorney is not term-limited and may cross over
administrations.

Development, Passage and Implementation of Budget

The Public Advocate’s office will be funded with no less than .05% (half a percent) of total
revenue to the city in order to keep it independent of Mayor/Council determinations (current City
Clerk/Attorney budgets total $1.5M). If they need additional funds, they may request such from
Council for approval through the normal budget process.

Appointments to City Committees and Boards

The Council reviews all nominations to board and commissions for final approval/rejection,
which are now made by the Public Advocate through an open and transparent application
process. Council approves/rejects each nominee with majority vote after the council committee
of jurisdiction holds public hearings/vote on each nominee.

Public Advocate’s Salary:

Public Advocate will be paid 1.5x the average salary for a family of four in Portland as
determined by the annual census.

Succession Plan

In the event of a vacancy or incapacity of the Public Advocate, the Council will appoint a Council
member to fill the role, and a special election will be held to fill the term of the Public Advocate
vacancy at the next general election.


Cost Analysis

This proposal is projected to be revenue neutral.

Implementing this Strong Council and Elected Mayor will save approximately $200,000. With the
elimination of the City Manager, the City will save about $250,000 in salary and benefit costs.
$50K of that would be used for the enhancement of the Mayor’s salary/benefits. The salary for
the proposed City Administrator salary can be pulled from the current Chief of Staff position in
the City Manager’s office.

The Public Advocate’s salary will be covered by shifting the current Deputy City Manager salary
(will save about $50K) and the Clerk and Attorney budgets will stay the same. The department




 Page 13
will then have around $250,000 for community liaisons, administrative work, and investigation
costs.

The cost for the increase to Councilor’s salaries is being explored by the “Procedures
committee” and will be priced out in that committee. This proposal should take into account that
a future Council may want to provide an additional stipend for the Council President.

All that said, obviously if this passes, the annual city budgeting process will determine whether
any particular provision should receive more or fewer resources.




 Forms of government for the largest city of every state


State Largest City Population Chief Executive

Vermont Burlington 42,899 Mayor

West Virginia Charleston 47,215 Mayor

Wyoming Cheyenne 63,957 Mayor

Maine Portland 66,417 Manager

Delaware Wilmington 70,635 Mayor

New Hampshire Manchester 112,525 Mayor

Montana Billings 116,827 Mayor

North Dakota Fargo 124,844 Mayor

South Carolina Charleston 136,208 Mayor

Connecticut Bridgeport 144,900 Mayor

Mississippi Jackson 164,422 Mayor

Rhode Island Providence 179,335 Mayor

South Dakota Sioux Falls 181,883 Mayor

Arkansas Little Rock 197,881 Mayor

Utah Salt Lake City 200,591 Mayor

Alabama Birmingham 208,928 Mayor

Iowa Des Moines 216,853 Manager




 Page 14
Idaho Boise 228,790 Mayor

New Jersey Newark 282,090 Mayor

Alaska Anchorage 291,538 Mayor

Hawaii Honolulu 347,397 Mayor

Kansas Wichita 389,225 Manager

Louisiana New Orleans 399,187 Mayor

Minnesota Minneapolis 427,728 Mayor

Virginia Virginia Beach 450,189 Manager

Nebraska Omaha 468,262 Mayor

Georgia Atlanta 504,527 Mayor

Missouri Kansas City 507,928 Mayor

New Mexico Albuquerque 560,218 Mayor

Wisconsin Milwaukee 592,025 Mayor

Maryland Baltimore 599,827 Mayor

Kentucky Louisville 620,578 Mayor

Nevada Las Vegas 647,829 Manager

Oklahoma Oklahoma City 649,021 Manager

Oregon Portland 661,189 Commission

Michigan Detroit 672,662 Mayor

Tennessee Nashville 681,928 Mayor

Massachusetts Boston 699,927 Mayor

District of Columbia Washington, D.C. 702,455 Mayor

Colorado Denver 716,492 Mayor

Washington Seattle 749,627 Mayor

Indiana Indianapolis 867,125 Mayor




 Page 15
North Carolina Charlotte 881,819 Manager

Ohio Columbus 895,477 Mayor

Florida Jacksonville 903,889 Mayor

Pennsylvania Philadelphia 1,587,828 Mayor

Arizona Phoenix 1,660,272 Manager

Texas Houston 2,325,502 Mayor

Illinois Chicago 2,705,994 Mayor

California Los Angeles 3,994,928 Mayor

New York New York City 8,879,928 Mayor


 Total Population 39,829,721

 Pop. Mayor Cities 34,206,907
 % in Mayor Cities 86%


 Almost 90% of Americans, in comparable cities to Portland, operate with a
 directly elected mayor.




 Page 16
 Portland's Current Distribution of Powers & Authority Compared to Proposals for Change

Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal


1) Who is the Chief Executive Officer? City Manager City Manager Mayor


 City Council; Mayor has special right to City Council; Mayor can propose policy
2) Who has policy making authority? City Council form staffed public task force on policy to Council, which would be required to
 not taken up by Council Committee. consider and vote on it.

3) Who oversees policy
 City Manager City Manager Mayor
implementation?
 City Administator, City Clerk,
4) Who are the top city officials?(note City Manager, City Clerk, Corporation City Manager, City Clerk, Corporation
 Corporation Counsel, Public Advocate
1) Counsel Counsel, Chief of Staff (note 2)
 (note 3)
 Mayor chairs committee with at least 2
 Public Advocate is elected. Clerk and
 other Council members to nominate
5) What is the process for filling top Same as current for City Manager, Clerk, Counsel nominated by Public Advocate.
 City Manager, Clerk, and Corporate
city official positions Counsel, and Chief of Staff Administrator nominated by Mayor.
 Counsel. Council confirms by majority
 Council confirms all by majority vote.
 vote.
 Public Advocate may recommend
 removal of City Clerk or Corporate
 Mayor-chaired 3 person Council
6) What is the process for removing top Counsel; Council must approve with
 Committee may recommend removal; No change
city officials 2/3rds vote. City Administrator serves
 Council approves by majority vote.
 at will of the Mayor. Public Advocate
 may be removed by citizen's recall.

7) Who manages day to day operations City Administrator under direct
 City Manager City Manager
of city affairs? supervision of Mayor
 City Manager nominates, Council Mayor nominates, Council approves;
8) How are Department Heads
 approves. Heads serve at will of the City no change department heads serve at will of the
hired/supervised/ removed?
 Manager. Mayor.



 Page 17
Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal

 Mayor is not a member. Council elects
9) Is mayor a member of Council? If yes, Mayor is voting member and chairs the
 no change its own President from amongst its
does mayor have a vote? Council.
 members.

10) Who Creates and Appoints Mayor, but council may override with President of Council can create
 no change
members to Council Committees? 2/3 vote. committees and appoint members.

11) Who appoints members of city PA nominates; Council approves/
 Council no change
boards and commissions? rejects by majority vote.

12) Who has authority for preparing/ City Manager prepares with "guidance" Mayor prepares with assistance from Mayor prepares with assistance of
approving Municipal Budget from Mayor; Council approves. Manager; Council approves. Administrator; Council approves.

 Mayor prepares with School Board
 School Board/Superintendent with
13) Who has authority for preparing/ Chair and Superintendent; School
 guidance from Council; approval by no change
approving School Budget? Board approves and sends to voters; no
 Council and then by voters.
 Council vote.
 Yes Override
14) Can Mayor veto the municipal Yes; 75% majority needed to override
 requires 6 (of 8) votes. Mayor does not No
budget approved by the Council? veto.
 vote.

 Yes -- full veto power over all policies,
15) Can Mayor veto other Council
 No No ordinances, orders, expenditures, etc.;
decisions?
 Council requires 75% vote to override.

16) How long does the Mayor serve in 4 years, corresponding with
 4 years 4 years
office? Presidential election years

17) Are their mayoral term limits? 3 terms 3 terms 2 terms

18) Can Mayor be removed before term
 Via citizens' recall Via citizens' recall Via citizens' recall
is over?




 Page 18
Powers & Authority Current Portland Charter Governance Committee Proposal Shiekh-Yousef Proposal

 Charter Arbitration Panel (note 4) and
 required City Council hearing for
 Referendum Advocates (note 5).
19) Have new powers/authority been
 Not applicable Council required to develop procedures None
proposed for non-city officials
 through which citizens may formally
 propose policies for council
 consideration (note 6).

Notes:


1) For purposes of this chart, current top city officials (other than mayor) include the city manager/administrator, city clerk, and corporate counsel
 as these are often in a town's Charter. New top positions proposed include a Chief of Staff and a Public Advocate.

2) Duties of proposed Chief of Staff: coordinate Council staffing need; receive and track constituent services and FOIA requests; post notices of city meetings
 and post all materials.

3) Duties of proposed Public Advocate: serve as independent ombudsman to improve city government. Provide outside review of
 city agencies, investigate citizen complaints, and make proposals for improvement to Mayor and Council. Respond to FOIA requests.
 Serves as Mayor in case of vacancy or incapacity of elected Mayor.

4) Arbitration panel will convene when called to act by City Council to interpret Charter language and provide a formal decision.
  Panel to consist of 3 members from previous Charter Commission.

5) When a referendum campaign has collected 2/3 of the required signatures, City Council will be required to hold a public hearing.




 Page 19
Structural Examination of Systems of City Government

 A Visual Representation of the Elements of City Government

 Submitted by Zack Barowitz, D3




 Page 20
 One Branch




Defining Characteristics

 1) Council has all executive, legislative, and oversight powers.
 2) Mayor is head of Council, sets meeting agendas, and typically has some other legislative powers no other council member has.
 3) All (most) executive powers delegated by Council to an appointed City Manager

Often Cited Advantages of this form

 a) Executive decisions are made by a professionally trained expert in city management
 b) CEO is not influenced by political considerations relating to his/her own electoral interests
 c) CEO devotes more time to administrative functions including policy implementation than to policy development
 d) No interbranch divisiveness and maximal congruence between policy development and policy implementation

Often Cited Disadvantages of this form

 a) CEO is not accountable to the voters, a fundamental disconnect with the principle that government decision-makers should be accountable to the people
 they serve.
 b) No direct incentive for CEO to be responsive to individual citizen or interest group concerns
 c) Little to no incentive for meaningful oversight of government agencies, programs, and policies or individual behavior of corporate officers



 Page 21
 One Branch + Elected Oversight




Defining Characteristics

 1) Single branch for legislative & administrative
 2) Oversight branch has investigatory and advisory powers but not adjudicative ones


Often-cited Advantages of this form

 a) Branch dedicated to government oversight will lead to more comprehensive investigation and reporting of how city government is functioning
 b) Independence of oversight branch reduces influence of other government officials in determination of what is investigated/researched, what
 recommendations are made, and what final reports actually say
 c) Independent branch dedicated to reviewing operations of city government is best place to house “ombudsman” providing non-judicial recourse
 for citizens dissatisfied with executive and/or legislative branch decisions

Often-cited Disadvantages

 a) Single branch gives less authority to elected officials




 Page 22
 Two Branches




Defining Characteristics

 1) Separate branches for executive and legislative functions
 2) Mayor not a member of the Council


Often Cited Advantages of this form

 a) Leaders responsible for executive and legislative functions are directly accountable to voters
 b) Leaders of both branches have electoral incentives to be responsive to individual citizens and interest groups
 c) Checks and balances between both branches, including legislative branch oversight of city agencies, are typically built-in

Often Cited Disadvantages

 a) CEO (Mayor) typically has little to no city management experience
 b) Potential politicization of city services
 c) Interbranch divisiveness has tendency to develop



 Page 23
 Three Branches




Defining Characteristics

 3) Separate branches for executive, legislative, and government oversight functions, each with elected leaders
 4) Oversight branch has investigatory and advisory powers but not adjudicative ones
 5) Public Advocate position tends to be breeding ground for individuals with ambitions for higher office

Often-cited Advantages of this form

 d) Branch dedicated to government oversight will lead to more comprehensive investigation and reporting of how city government is functioning
 e) Independence of oversight branch reduces influence of other government officials in determination of what is investigated/researched, what
 recommendations are made, and what final reports actually say
 f) Independent branch dedicated to reviewing operations of city government is best place to house “ombudsman” providing non-judicial recourse
 for citizens dissatisfied with executive and/or legislative branch decisions

Often-cited Disadvantages

 b) Additional branch increases likelihood of interbranch divisiveness



 Page 24
 Evaluation of the systems based on goals, values, and anticipated outcomes.

Because values are more easily agreed upon than methods, I think a consideration of goals is a good place to start. My current thinking on structure
of government is to test various models against various values, goals, and expected outcomes.These could include:


 ● Responsiveness of government to constituent needs–and to change, innovation, and unexpected events
 ● Efficient administration
 ● Provide avenues for public recourse
 ● Transparent oversight/daylight to minimize waste, fraud, and abuse
 ● Empower the legislative/elected body
 ● Mitigate red tape
 ● Increase public participation
NB: This is presented for the sake of illustration not necessarily as a methodological framework.


Example:

 Current
 System Enhanced One Branch
 (One One w/elected Two Branches: Thee Elected Branches:
 Branch) Branch oversight Council-Mayor Council-Mayor-Oversight


Efficient Admin


Empowered Elected
Officials


Public/Transparent
Oversight


Avenues for Public
Recourse
Cost


 Page 25
Proposed Process for Commission Decision Making
 1) Using the above charts, commissioners discuss how many branches Portland’s government should have

 2) At the end of discussion, a straw-vote is taken on the above question.

 3) After straw vote is taken, the Powers/Authority Matrix is used to flesh out the specific powers of the officers in whichever
 government form has won the most votes. A “Commission Proposal” Column has been added to the previous Matrix to
 facilitate this “fleshing out”. All of the cells in that column are currently blank. Some will be filled in as a result of the
 above straw-vote (i.e., who is the CEO? And who manages day-to-day operations of city staff?). The Commissioners will
 then proceed (row by row) to decide how to complete each unfilled cell in the Commission Proposal Column, picking from what’s
 been proposed in the other columns for each row or coming up with some other option entirely. After discussing all the options for
 each row, further straw-votes would be taken on what goes into each blank cell.

 4) After all cells are completed on a straw-vote basis, the Commissioners would then take a final vote on what is contained in
 the Commission Proposal column as a whole. Presumably some commissioners may disagree with how some of the cells have
 been completed, but they may still decide to vote in favor of the Commission Proposal as a whole.

Note: To speed up the process described in (3) above, one idea is to give each commissioner their own matrix and have them complete
each blank cell themselves. Then all the individual responses could be tabulated (anonymously) to see how much agreement or
disagreement there is in terms of each cell. Cells where there is substantial disagreement would (presumably) be the place where
discussion and debate would begin.

[NB: This process in particular, and much of the work on this document generally, was developed by Valerie Kelly and Phil Steele, who worked in
close collaboration with Cmsr. Barowitz.]




 Page 26
 GOVERNANCE COMPROMISE

 Co-Sponsors: Commissioners CHANN and O’BRIEN

MAYOR AS CHIEF EXECUTIVE

 ● The Mayor shall be the chief executive officer of the City of Portland with supervision of the City Manager
 and the implementation of policies passed by the City Council.

 ● The Mayor shall preside as chair of the City Council.

 ● The Mayor shall cast a vote only in the event of a tie.

 ● The Mayor and At-Large Councilors shall together form an Executive Committee, who will appoint
 Council members to committees.

 ● The Executive Committee will develop and propose Council rules of procedure for adoption by the City
 Council.

 ● The Executive Committee will serve as the official channel for the Mayor and Council to communicate
 with Constitutional Officers about policies, priorities, and to set agendas for Council meetings.

PUBLIC FIGUREHEAD

 ● Mayor shall serve as the official representative of the City in Augusta and Washington, D.C.

 ● Mayor shall serve as the official spokesperson for the City.

 ● May form public task force by right with reasonable staffing support for any issue not taken up by Council.

BUDGETARY POWERS

 ● The Mayor shall present the City Budget to the Council for adoption.

 ● The Mayor shall communicate their and City Council’s priorities for the drafting of the City Budget by the
 City Manager, who will work with Department Heads to develop their departmental budgets.

 ● The Mayor may veto the City Budget and the Council can override with a 2/3 majority vote.

HIRING & FIRING OF CITY STAFF

 ● The City Manager, Corporation Counsel, and City Clerk shall be hired following a search process that
 includes the Mayor and City Council and a majority vote of the City Council.

 ● The Mayor shall chair the City Manager, Corporation Counsel, and City Clerk’s annual performance
 review and may call, at any time, an executive session of the Council to discuss performance. These
 officers may be removed following a majority vote of the City Council.

 ● The Mayor shall not have the power to unilaterally hire and fire city staff, including the City Manager, City
 Attorney, City Clerk, Department Heads.

 ● The Mayor advises and consents to City Manager’s nominations of Department Heads and presents to City
 Council for confirmation.

POLICY IMPLEMENTATION, ECONOMIC DEV & DAY-TO-DAY OPERATIONS

 ● The Mayor shall ensure that policies passed by the Council are implemented by the City Manager and city
 staff and shall meet regularly with the Executive Committee and the City Manager to develop a plan for
 implementation to help ensure and measure accountability.

 ● The Mayor shall lead an economic development task force.




 Page 27
 GOVERNANCE COMPROMISE
 (AMENDMENT)
 Co-Sponsors: Commissioners CHANN and O’BRIEN amended by BUXTON, KEBEDE, SHEIKH-
 YOUSEF, and WASHBURN
MAYOR AS CHIEF EXECUTIVE
   The mayor shall be the chief executive officer of the City of Portland, overseeing and supervising
 the city administrator and implementing policies passed by the City Council.
   The mayor is no longer a member of the Council and does not have a council vote.

COUNCIL AS LEGISLATIVE BRANCH
   Councilors shall together form an Executive Committee, which appoints members to committees
 and elects a 2-year council president.
   The council president develops and proposes council rules of procedure for adoption by the
 council.
   The council president serves as the official channel for Council to communicate with
 constitutional officers about policies, priorities, and agendas for Council meetings.
   The mayor may propose legislation to be taken up by council. Individual council members
 may sponsor legislation. All city staff and members of the public may petition a councilor to
 sponsor legislation to be taken up on their behalf.


PUBLIC FIGUREHEAD
   The mayor shall serve as the official representative of the city in Augusta and Washington, D.C.
   The mayor shall serve as the official spokesperson for the city.
   The mayor may form public task forces with staffing support for any issue not taken up by the
 council.
BUDGETARY POWERS
   The mayor, with the assistance of department heads and the city administrator, drafts and presents
 the annual city budget to the council for adoption.
   The mayor, with the assistance of the city administrator, works with department heads to develop
 their departmental budgets.
REMOVAL OF MAYOR
   If the mayor is convicted of a felony materially related to their official duties, the City Council
 may, upon a vote of ¾ of its members, remove the mayor from their office.

   If the mayor engages in official misconduct or neglect of duty, the council may schedule a recall
 election by a 3/4ths vote. (from Westbrook)
APPOINTMENTS AND STAFFING
   The mayor may not unilaterally hire and fire city staff, including the city administrator, city
 attorney, city clerk, and department heads.
   The mayor nominates department heads and the city administrator, and presents nominations to
 the City Council for confirmation.




 Page 28
   Only department heads may fire and hire city staff.
   The council cannot unilaterally fire or hire officers, including the city administrator or department
 heads. The mayor shall recommend removal of an officer, and the council can approve with
 simple majority. If council seeks to discharge an officer, they should seek approval of the mayor,
 who will make the recommendation for removal to be approved by a majority of the council.
 Should the council seek to remove an officer without mayoral approval, they may only do so with
 a ¾ majority vote.

POLICY IMPLEMENTATION, ECONOMIC DEVELOPMENT, AND DAY-TO-DAY
OPERATIONS
   The mayor oversees the implementation of policies passed by the council and shall meet regularly
 with the Council Executive Committee to develop implementation plans and report on results and
 measure accountability.
   The mayor shall direct the city administrator and department heads to implement council policies.
   The mayor shall lead an economic development task force.
   The mayor shall chair the city administrator’s annual performance review and may call, at any
 time, an executive session of the council to discuss performance.




 Page 29
 [CHANGES TRACKED]
 GOVERNANCE COMPROMISE
 Co-Sponsors: Commissioners CHANN and O’BRIEN amended by KEBEDE, BUXTON, SHEIKH-
 YUSUF, and WASHBURN
MAYOR AS CHIEF EXECUTIVE
  ● The mayor shall be the chief executive officer of the City of Portland, overseeing and supervising
 the City Manager city administrator and implementing policies passed by the City Council.
  ● The mayor is no longer a member of the Council and does not have a vote.
  ● The mayor signs or vetos all legislation enacted by the Council. Commented [1]: Veto power was not in
  ● The mayor shall preside as chair of a twelve (12) member council. original document Michael sent. I think the
 veto powers significantly alters the powers of
  ● The mayor shall cast a vote only in the event of a tie. the mayor and makes this **much** less of a
  ● The mayor and At-Large Councilors shall together form an Executive Committee, who will compromise proposal than Michael's original
 appoint Council members to committees. text. I'm still not sure where I land on veto
 power, but I think if the goal is still to
  ● The Executive Committee will develop and propose Council rules of procedure for adoption by encourage some council-mayor
 the City Council. collaboration, it might be better to allow
 Mayor to sponsor legislation (and spell this
  ● The Executive Committee will serve as the official channel for the mayor and Council to out in detail in this proposal) and form
 communicate with Constitutional Officers about policies, priorities, and to set agendas for legislative tasks force, rather than give mayor
 Council meetings. veto power. If the mayor doesn't have veto
 power and instead needs to collaborate w/
COUNCIL AS LEGISLATIVE BRANCH councilors to push their agenda, is that more
 collaborative? I don't think their lack of a veto
  ● Councilors shall together form an Executive Committee, which appoints members to committees
 makes them any less "accountable" to voters,
 and elects a 2-year council president. we've just seen veto power abused pretty
  ● The council president develops and proposes council rules of procedure for adoption by the extensively in Maine, especially with such a
 council. split electorate.

  ● The council president serves as the official channel for Council to communicate with Either way-- I think veto power is up for
 constitutional officers about policies, priorities, and agendas for Council meetings. debate and I think we should hash it out as
 commission. I don't know if i can sign on to
  ● CB added: The mayor may propose legislation to be taken up by council. Individual council something with veto power for the mayor.
 members may sponsor legislation. All city staff and members of the public may petition a Commented [2]: Is this a Committee of the
 councilor to sponsor legislation to be taken up on their behalf. Whole or do councilors elect a few of their
 members as executives?
 Commented [3R3]: Similar question: I think the
PUBLIC FIGUREHEAD WHOLE council should elect the whole of
 their executive committee-- so they all vote
  ● The mayor shall serve as the official representative of the city in Augusta and Washington, D.C.
 on their president and 2(?) other committee
  ● The mayor shall serve as the official spokesperson for the city. members to serve on Exec.

  ● The mayor may form public task forces by right with staffing support for any issue not taken up broader q is do they need an exec committee
 by the council. or is it better just to have 1 CP?
BUDGETARY POWERS Commented [4]: this was a common thread
 b/tw Gov Committee and NSY proposal.
  ● The mayor, with the assistance of department heads and the city administrator, drafts and presents
 the annual city budget to the council for adoption.




 Page 30
  ● The mayor, with the assistance of the shall direct the drafting of the City Budget by the City
 Manager, who will work withand city administrator, shall works with department heads to
 develop their departmental budgets.
REMOVAL OF MAYOR
  ● If the mayor is convicted of a felony materially related to their the performance of the Mayor’s
 official duties, the City Council may, upon a vote of ¾ of its members, remove the mayor from
 their office.
  ● If the mayor engages in official misconduct or neglect of duty, the council may schedule a recall
 election by a 3/4ths vote. (from Westbrook)
APPOINTMENTS AND STAFFING
  ● The mayor may not unilaterally hire and fire city staff, including the City Managercity
 administrator, city attorney, city clerk, and department heads.
  ● The mayor advises and consents to City Manager’s shall nominatesions department heads and the
 city administrator, and presents nominations to the City Council for confirmation.
  ● Only department heads may fire and hire city staff.
  ● The city council may not unilaterally discharge department heads or the city administrator. These Commented [5]: I'm not sure I'm 100% behind
 individuals Department heads/City Administrator may only be fired if the Mayor recommends this addition, I think it makes sense for the
 council to not be able to fire a mayor's staff
 such action and a majority of the council approves. The council cannot unilaterally fire or hire out from under them, but at the same
 officers, including city administrator or department heads. The mayor shall recommend to remove time...what if a mayor hires someone who
 an officer, council can approve with simple majority. If council seeks to discharge an officer, they turns out to be a real dumpster fire of a
 person, but they won't fire them because
 should seek approval of mayor, who will make the recommendation for removal to be approved they're a personal friend, you'd want a check
 by majority of council. Should the council seek to remove an officer without mayoral approval, on that thru the council, right?)
 they may only do so with a ¾ majority vote.
 Does it make more sense that the mayor can
 ● nom, hire, fire w/ a vote of 2/3rds of council,
 and council likewise can by 2/3 or even
POLICY IMPLEMENTATION, ECONOMIC DEVELOPMENT, AND DAY-TO-DAY
 larger majority opt to remove a high level
OPERATIONS staffer? It offers a balance on power and
  ● The mayor oversees the implementation of policies passed by the council and shall meet regularly addresses sone folks concerns about
 with the Council Executive Committee to develop a plan for implementation plans and report on cronyism better.
 results. to help ensure and measure accountability. Commented [6]: This section feels a little
 convoluted. Does it make sense to say more
  ● The mayor shall direct the city administrator and department heads City Manager to implement simply:
 council policies. "Mayor may hire and fire department heads
 and the city administrator with nomination
  ● The mayor shall lead an economic development task force. and approval for any new hires or discharges
  ● The mayor shall chair the City Managercity administrator’s annual performance review and may with a 2/3 council vote? Department heads
 call, at any time, an executive session of the council to discuss performance. are responsible for hiring and firing of their
 own staffers."




 Page 31
TWO PLANS FOR An Overlap Analysis
 PORTLAND
 Page 32
KEY TO THE PLANS
Blue Plan: Chann-O’Brien Agreeme
Purple Plan: Chann-O’Brien as nt
amended by Buxton, Kebede,
Sheikh-Yousef and Washburn
 Agreement in principle;
 Details need to be
Please note that colors are intended merely as reconciled
handy ways to distinguish the plans and do not
denote anyone’s politics or opinions. They were
chosen because they are the colors of Portland’s
two public high schools. We need to
 talk


 Page 33
MAYOR AS CHIEF EXECUTIVE
 The mayor shall be the chief The mayor shall be the chief
executive officer of the City of executive officer of the City of
Portland, overseeing and Portland, overseeing and
supervising the city administrator supervising the city administrator
and implementing policies passed by and implementing policies passed by
the City Council. the City Council.




 Page 34
COUNCIL AS LEGISLATIVE
BRANCH
The Mayor shall preside as chair of the City Councilors shall appoint members to
Council. committees and elect a 2-year council
The Mayor shall cast a vote only in the event of
 president.
a tie. The council president develops and
The Mayor and At-Large Councilors shall proposes council rules of procedure for
together form an Executive Committee, who will adoption by the council.
appoint Council members to committees.
 The council president serves as the
The Executive Committee will develop and official channel for Council to
propose Council rules of procedure for communicate with constitutional officers
adoption by the City Council. about policies, priorities, and agendas for
 Council meetings.
The Executive Committee will serve as the
official channel for the Mayor and Council to The mayor may propose legislation to be
communicate with Constitutional Officers about taken up by council. Individual council
policies, priorities, and to set agendas for
Council meetings. members may sponsor legislation. All city
 staff and members of the public may
 petition a councilor to sponsor legislation
 to be taken up on their behalf.
 Page 35
PUBLIC FIGUREHEAD
 Mayor shall serve as the official Mayor shall serve as the official
representative of the City in Augusta representative of the City in Augusta
and Washington, D.C. and Washington, D.C.
Mayor shall serve as the official Mayor shall serve as the official
spokesperson for the City. spokesperson for the City.
May form public task force by right May form public task force by right
with reasonable staffing support for with reasonable staffing support for
any issue not taken up by Council. any issue not taken up by Council.




 Page 36
BUDGETARY POWERS
The Mayor shall present the City The mayor, with the assistance of
Budget to the Council for adoption. department heads and the city
 administrator, drafts and presents
The Mayor shall communicate their the annual city budget to the council
and City Council’s priorities for the for adoption.
drafting of the City Budget by the
City Manager, who will work with The mayor, with the assistance of
Department Heads to develop their the city administrator, works with
departmental budgets. department heads to develop their
 departmental budgets.
The Mayor may veto the City
Budget and the Council can override
with a 2/3 majority vote.

 Page 37
HIRING AND FIRING OF CITY
STAFF
The City Manager, Corporation Counsel, and The mayor may not unilaterally hire and fire city
City Clerk shall be hired following a search staff, including the city administrator, city
process that includes the Mayor and City attorney, city clerk, and department heads.
Council and a majority vote of the City Council.
 The mayor nominates department heads and
The Mayor shall chair the City Manager, the city administrator, and presents
Corporation Counsel, and City Clerk’s annual nominations to the City Council for
performance review and may call, at any time, confirmation.
an executive session of the Council to discuss
performance. These officers may be removed Only department heads may fire and hire city
following a majority vote of the City Council. staff.
The Mayor shall not have the power to The council cannot unilaterally fire or hire
unilaterally hire and fire city staff, including the officers, including the city administrator or
City Manager, City Attorney, City Clerk, department heads. The mayor shall
Department Heads. recommend removal of an officer, and the
 council can approve with simple majority. If
The Mayor advises and consents to City council seeks to discharge an officer, they
Manager’s nominations of Department Heads should seek approval of the mayor, who will
and presents to City Council for confirmation. make the recommendation for removal to be
 approved by a majority of the council. Should
 the council seek to remove an officer without
 mayoral approval, they may only do so with a ¾
 majority vote.
 Page 38
POLICY IMPLEMENTATION,
ECONOMIC DEVELOPMENT,
DAY-TO-DAY OPERATIONS
 The Mayor shall ensure that policies The mayor oversees the
passed by the Council are implementation of policies passed by
implemented by the City Manager the council and shall meet regularly
and city staff and shall meet with the Council Executive
regularly with the Executive Committee to develop
Committee and the City Manager to implementation plans and report on
develop a plan for implementation to results and measure accountability.
help ensure and measure
accountability. The mayor shall direct the city
 administrator and department heads
The Mayor shall lead an economic to implement council policies.
development task force.
 The mayor shall lead an economic
 development task force.
 Page 39
 Ethics Standards and Commission


Introduction:
Ethics boards, ordinances and charter amendments can be found in municipalities across the
State of Maine and across the country. They provide guidelines for city officials to execute their
duties in an ethical and forthright manner. This Amendment brings Portland up to speed with
other municipalities across the state that have similar provisions.

What does this Amendment do?
  ● Requires the Portland City Council to Form an Ethics Commission (EC)
  ● Requires the City Council to adopt of Code of Ethical Conduct recommended by the EC
  ● Instills discretionary power of the EC to render advisory opinions on a number of matters
 of City business.
  ● Requires the EC to provide training to City officials on standards of conduct.
  ● Allows the EC to hire an Accountability Officer to provide education and guidance and to
 serve as an independent ombudsperson in resolution of disputes in an advisory capacity.

Why is this Amendment needed?
Currently, Portland does not have an ethics board, a written code of ethics, nor requirements of
written disclosures of conflicts. While the existence of such instruments may not in and of
themselves prevent a bad actor from seeking pecuniary gain or to otherwise use or abuse their
power or position; it does provide standards and a process for which such matters may be
addressed. Additionally, while incidences of waste, fraud, abuse, and corruption are relatively
rare in most municipal governments; the most common breaches of ethical standards include
improper sharing of information, improper gifts, and indecent treatment of colleagues. (Siewert
& Udani).

The current City of Portland ordinance does not apply to elected officials and is non-specific in
terms of standards of conduct, deferring mainly to State statute on matters of personal gain:

 “In addition to adhering to general standards of conduct for employees of any
 organization, public employees are expected to treat everyone they serve with
 complete impartiality and are prohibited from using their official position for personal
 profit or the profit of friends and family. Employees must comply with the conflict of
 interest standards of State law 30-A M.R.S.A. Sec. 2605.”

This Amendment is not intended to imply that City officials currently act unethically. Rather, it is
a provision that ensures our city maintains a code of ethical conduct for officials that will build
public trust and ensure Portland has high ethical standards. This Amendment is a product of
public comment, campaign discussions and research by Commission members.




 Page 40
Other Purposes:
 ● Encourage proper use of office
 ● Compliance with advisory opinions
 ● Mitigate instances of personal gain, political favors, political solicitation, and
 favoritism.
 ● Protect against the “revolving door” of City officials, consultants, and contractors.

General Reasoning for an Ethics Commission:
 ● Protect whistleblowers.
 ● Fight and discourage corruption, waste, fraud, abuse, and favoritism from both elected
 and unelected individuals.
 ● Increase transparency and accountability in municipal government.
 ● Be a safe, independent place to send complaints and concerns regarding ethical conduct.
 ● Creates an ethics mission and code for the City of Portland.
 ● Cost effective, productive ethical conduct oversight that has proven to work elsewhere in
 Maine.
 ● To bring more voices to the table and the community oriented decisions on what ethical
 conduct is, rather than one individual.
 ● Build public trust in municipal government




 Page 41
 CITY OF PORTLAND ETHICS COMMISSION & CODE OF ETHICS

1. The proper operation of the City of Portland requires that all
City officials, whether elected, appointed, or city employees be
impartial, equitable, and responsive to the needs of the people and
each other in the performance of their respective functions and
duties; that proper conduct by City officials will promote public
confidence in the integrity of government and will be maintained by
all City officials; that public office not be used for personal or
financial gain or advantage; and that the structure of City
government be used properly in decision and policy-making. In
recognition of these goals and the importance of protecting public
interest and City officials, an Ethics Commission shall hereby be
established for all by the City Council.

1.1 PURPOSE: To provide impartial oversight as to ensure that
standards of conduct are defined and upheld; and to make public the
sources of income as well as other areas of personal and pecuniary
interests to city officials, their family members, and major
supporters for purposes of recusal.

Section 1.2 Ordinance required.
The City Council shall maintain an ordinance defining the code of
ethical conduct of elected and appointed City officials, as well as
all employees of the City in accordance with all applicable labor
laws, contracts, and confidentiality requirements. The ordinance
shall be developed and recommended by the Ethics Commission, as
provided in Section 2, and be approved and later amended with the
approval of 2/3 of City Councilors present and voting. The ordinance
shall establish the process for filing complaints and soliciting
advisory opinions by residents of Portland and city employees.

1.3 The code shall include and encompass, but not be limited to the
following:

 Standards of Conduct
 Disclosure of Confidential Information
 Conflicts of Interest
 Disclosure of Conflict
 Determination of Conflict

1.3.1 Whereby the disclosures as provided in Sec. 1.3 wherein prior
to being sworn into office, all elected city officials and executive
and senior city staff shall complete a disclosure form. The form
shall disclose all sources of income, as well as those of close




 Page 42
family members, in accordance with common and accepted practices
consistent with state and community standards. Applicable forms shall
be public documents and may be referenced by the public for purposes
of recusal. The form shall be updated on an annual basis or upon
change of employment or situation. These disclosures shall be made
publically accessible and posted together on the city’s website and
on the page of that city official as applicable and in accordance
with all applicable labor laws, contracts, and confidentiality
requirements.

1.4 The Board shall devise, with the assistance from city staff
and/or outside counsel, a code of ethics for Portland City officials
and employees which shall include but be not limited to:
 - Councilors
 - School Board
 - All other elected officials
 - All appointments including but not limited to boards,
 commissions, and task forces
 - All city employees

1.5 Anyone, whether they be a city official or member of the public,
may bring a complaint to the attention of city officials for the
purposes of consideration of a conflict of interest or the appearance
of a conflict of interest, or for any violation of the code of
ethical conduct.

Section 2. Formation of Ethics Commission.
The ordinance shall direct the formation of an Ethics Commission,
consisting of seven (7) members who are residents of the City, to
review the code ordinance not less than once every three (3) years.
The commission shall be appointed by the City Council. Elected
officials, candidates for any elected office, and their immediate
family members shall not be permitted to be members of the
commission. The commission shall meet as needed, but no less than
once every three (3) months.

Section 2.1. Independence.
The Commission shall remain an independent body, free from
interference from any City employees or elected officials. The
Commission may request funding from the City Council for an
independent investigation as needed.

Section 2.2. Term.
Commissioners shall serve for a term of three (3) years.




 Page 43
Section 2.3 Duties.
The Commission shall develop the Code of Ethics. The Commission shall
provide a report to the City Council no less than annually. The
Commission shall consider questions and render advisory opinions. The
Commission shall oversee training for elected and appointed
officials, as well as members of city staff on the code of ethics and
ethical standards.

Section 2.3.1. Advisory Opinions.
The Ethics Commission or quorum of at least five (5) members, shall
be convened on request for an advisory opinion by no less than two
(2) members of the City Council, the Mayor, or the Chief Executive
Officer of the City. The Commission may issue, at its discretion,
advisory opinions upon request of any city officer, official,
employee, or resident of the City of Portland at any time.

The names of complainants shall be protected by confidentiality,
unless they elect to waive it. No complainant shall be retaliated
against for filing a complaint.

Section 2.3.2. Advisory Interpretation of the City Charter
The Ethics Commission may, at its discretion, also render
non-binding, advisory opinions on City compliance with The City
Charter. The Commission may provide, at its discretion, its written
interpretation of the Charter on the written request of any resident
or official of the City. The Commission’s interpretation is advisory
only and for educational purposes and shall not be the basis for any
legal action. A copy of the request and the proposed response shall
be provided to the City Council, Mayor and City Manager for review
prior to being issued.

The Commission may, at its discretion, issue advisory opinions on the
adherence of Council and board rules and procedures. They may also
request a second legal opinion on behalf of the City Council or any
board or committee. The Commission may also request conduct program
evaluations and recommend an evaluation be conducted in-house,
contracted, or by a specialized hire.

Section 2.3.3. Delivery of Advisory Opinion
The Ethics Commission shall deliver all advisory opinions including
but not limited to ethics violations, conflicts of interest, and
charter opinions, to the City Attorney, Chief
Executive/Administrator, Mayor and City Council in compliance with
applicable law, no less than 14 days after a decision is made.




 Page 44
2.4 Appointment of Accountability Officer.
The Ethics Commission may appoint an Accountability Officer who shall
serve as an ombudsperson to members of the public. The Accountability
Officer shall provide city information to the public and officials to
educate them about government accountability, integrity, and
transparency. They also shall receive complaints from the public
about alleged government waste, favoritism, mismanagement, and
violations of the public trust. The Accountability Officer shall, at
their discretion, conduct impartial investigations of such
allegations, issue reports, and make recommendations to the Ethics
Commission to advance government efficiency, competence, and
fairness. The Accountability Officer shall refer any matter alleging
corruption, fraud, or abuse to the appropriate law enforcement
agency.

Section 3. Violations of the Ethics Code.
Violations apply to both elected and appointed officials and any
member of city staff. If the Commission finds violations of the
ethics code, the Commission may recommend, by a simple majority vote,
advisory opinions to the applicable hiring authority on any
appropriate disciplinary or removal proceedings and notify the city
attorney that further action should be taken in accordance with state
law. Opinions rendered by the Commission are not legally binding and
purely advisory in nature and shall be rendered in accordance with
all applicable labor laws, contracts, and confidentiality
requirements.

In no circumstances shall the ethics commission have access to any
personal information protected by state law.

Any City Councilor or Mayor found in violation of the ethics code may
be reprimanded by the City Council. The Council may decide to do
nothing, censure a member, remove a member, or set a recall election.
Whichever option is selected, requires a 2/3rds majority vote of the
City Council.

Suspected criminal conduct shall be reported immediately to the
Portland police department.

The complainant shall receive a response to the complaint regarding
the outcome.

Section 3.1 Conflict of Interest of Elected Officials, Boards, and ad
hoc Committees

3.1.1 Determination of Conflict




 Page 45
If the subject is a member of an elected or appointed body, including
but not limited to council, board, committee, or task force, the
complaint shall be brought to the attention of the chair (or
equivalent) of that body. Once the complaint of conflict of interest
has been initiated against a member of a body as provided above, the
body shall deliberate the matter themselves or refer deliberation to
an appropriate office or entity.

If the complaint is against the chair, then the complaint shall be
brought to the attention of the next most senior member who is not
subject of the complaint or who is not the complainant themself.

Once a complaint has been made, the subject shall be notified of the
complaint and shall have the option to recuse themself or to request
deliberation. Public notice shall be given of the complaint unless
confidentiality requirements prohibit it.

Complaints determined by the chair of the relevant body (or the next
most senior member, to whom the complaint is not against) to be
frivolous, scurrilous, libelous, baseless, unfounded, of nuisance, or
otherwise without account need not be deliberated or referred if the
complaint is publicly designated as such.

Members of the public may bring their complaint to the entire body or
to other city officials including the Ethics Commission. The
Commission may refer complaints to the appropriate office or body for
consideration. Except as described in the preceding paragraph, all
complaints shall be considered or deliberated in as timely a manner
as possible and in any case shall be considered in advance of
deliberation on the relevant proposal or law.

Section 3.2 Acknowledgement of Complaint
The complainant shall receive a response to the complaint regarding
the outcome.

Section 3.3 Failure to Disclose or Comply with Code of Ethics
Failure to disclose or comply with the code of ethics shall result in
disciplinary action that may include termination of the individual
from their position with the city.




 Page 46
  Examples of Ethics Boards/Commissions/Ordinances/Charter Amendments/Disclosure
 Forms:

Bangor, ME: Population: 31,753
 ● Ordinance: https://ecode360.com/6889057
 ● Charter Amendment (establishes board & requires creation of code):
 https://ecode360.com/14956369

Waterville, ME: Population: 15,828
 ● Ordinance:http://www.waterville-me.gov/ordinances/wp-content/uploads/sites/25/2018/0
 2/Ethics-Ordinance-Revised-010518.pdf
 ● Charter Amendment: Article VI (establishes board & requires creation of code)
 http://www.waterville-me.gov/clerk/wp-content/uploads/sites/10/2017/08/2020-Charter-
 with-Revision-Markups.pdf

Windham, ME: Population: 18,434
 ● Ordinance (establishes both the Ethics Board & code):
 https://www.windhammaine.us/DocumentCenter/View/1017/Ethics-Policy---Board-of-Et
 hics?bidId=

York, ME: Population 13,723
 ● Ordinance (no board established - up to chairs & department heads to regulate conduct):
 https://www.yorkmaine.org/DocumentCenter/View/1348/a-Code-of-Ethics-2021-06-14?b
 idId=

Bristol, ME: Population 2,834
 ● Ordinance (no board established but complaints are brought straight to the selectmen to
 decide).
 https://www.bristolmaine.org/sites/g/files/vyhlif4191/f/uploads/code_of_ethics_and_cond
 uct.pdf

Lisbon, ME: Population 9,711
 ● Ordinance (establishes an ethics panel of three voters and issues advisory opinions on
 conflicts of interests)
 https://library.municode.com/me/lisbon/codes/code_of_ordinances?nodeId=PTICOOR_C
 H12ETCOIN_S12-3ETPA

Ogunquit, ME: Population 1,577




 Page 47
 ● Ordinance (no board, ethics violations are determined internally on boards and
 committees)
 https://www.townofogunquit.org/vertical/Sites/%7B2524508A-BBA7-433A-9EAA-E74
 D93FCB25D%7D/uploads/CODE_OF_ETHICS_FOR_BOARDS_AND_COMMITTEE
 S.pdf

Madison, ME: Population 2,433
  ● Ordinance (includes ethics board with advisory opinions provided to select board)
 https://ecode360.com/9856843

Kennebunk, ME: Population 11,536
 ● Internal procedures governing rules for the council.
 https://www.kennebunkmaine.us/DocumentCenter/View/218/Select-Board-Code-of-Ethic
 s?bidId=

Bridgton, ME: Population 5,418
 ● Ordinance (establishes penalty for violation and applies to all elected officials and
 employees) https://bridgtonmaine.org/wp-content/uploads/2017/09/Code-of-Ethics.pdf

New York, NY: Population: 8.5 Million
 ● Charter Chapter 68 (establishes the Conflicts of Interest Board, defines its powers and
 obligations, defines prohibited interests and conduct, establishes reporting requirements,
 establishes the Board’s power to impose penalties, authorizes the Board to investigate and
 adjudicate gifts by lobbyists):
 https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCcharter/0-0-0-5995
 ● The Rules of the City of New York
 https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-86448

El Paso, TX: Population: 679,813
 ● Charter Title 2, Chapter 2.92 (establishes board, Standard of Conduct, duties, jurisdiction,
 and procedures)
 https://library.municode.com/tx/el_paso/codes/code_of_ordinances?nodeId=TIT2ADPE_
 CH2.92ET_ARTIIIETRECO_2.92.150ADOP
 ● Ordinance
 https://library.municode.com/tx/el_paso/ordinances/code_of_ordinances?nodeId=107821
 4

Philadelphia, PA: Population 1.58 Million
 ● Charter Chapter 11 (establishes Board, powers and duties)
 https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-182492




 Page 48
 ● Code (defines duties, standards, prohibited conduct, penalties, establishes standard of
 conduct and financial disclosure requirements)
 https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-217009


Examples of Charter Compliance Commissions:

Provincetown, MA: Population: 2,994 - Charter Compliance Commission
 ● Charter Amendment:
 https://www.provincetown-ma.gov/125/Charter-Compliance-Commission
 ● https://www.provincetown-ma.gov/DocumentCenter/View/202/Charter-PDF?bidId=
 (page 6)

Bourne, MA: Population: 19,872 - Charter Compliance Commission
 ● Charter Amendment:
 https://www.townofbourne.com/sites/g/files/vyhlif7346/f/uploads/town_charter_2016.pdf
 ● https://www.townofbourne.com/charter-compliance

Milton, VT: Population 2,507 - Charter Compliance Commission
 ● Charter Amendment:
 https://legislature.vermont.gov/statutes/section/24appendix/129/00702


Examples of Disclosure Forms from the State of Maine
https://www.maine.gov/ethics/financial-statements/legislators

Example of Code of Ethics
https://www.windhammaine.us/DocumentCenter/View/1017/Ethics-Policy---Board-of-Ethics?bi
dId=




 Information/Research Consulted

 1. Davies, Mark. "Keeping the Faith: A Model Local Ethics Law - Content and
 Commentary. Fordham Urban Law Journal, vol. 21, no. 1, 1993.
 a. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=
 1386&context=ulj Outline of types of common ethical violations and sample
 ordinance language.




 Page 49
2. Meadows-Keefe, Julie. "From Rumblings to Reality: One City's Story of Ethics Reform."
 Stetson Law Review, vol. 46, issue 3, 2017.
 a. https://www2.stetson.edu/law-review/article/from-rumblings-to-reality-one-citys-
 story-of-ethics-reform/



3. Leventhal, Stephen J. "Running a Local Municipal Ethics Board: Ten Steps to a Better
 Board." Municipal Lawyer, vol. 22, no. 4, 2008.
 a. https://nysba.org/app/uploads/2020/03/EthMuniLawFall08.pdf A guide for ethics
 board members.



4. Siewert, Wally & Udani, Adriano, "Missouri Municipal Ethics Survey: Do Ethics
 Measures Work at the Municipal Level?" Public Integrity, vol. 18, issue 3, 2016.
 a. https://discovery-ebsco-com.wv-o-ursus-proxy09.ursus.maine.edu/c/4klzeq/viewe
 r/html/yjls2w24bn A quantitative analysis of the types of ethical violations that can be
 mitigated by ethics measures.




 Page 50
 C. Non-Exempt Employees (Grades 1 -6)

 1. Reductions in force of permanent hourly employees will be made by
 classification and within departments. Hourly employees in an affected
 classification within a department will be laid off by seniority with the least
 senior person laid off first. Seniority is defined as continuous permanent
 City service, including probationary time.

 2. Hourly employees faced with lay-off may transfer or bump into other
 positions on the following basis:

 a. An employee who would be laid off under Section 1 above may
 transfer to a vacant position within the City which the employee is
 qualified to perform as determined by the City.

 b. If there is no suitable vacant position, the employee may bump a
 less senior employee in a position within the City which the
 employee faced with lay-off once held.

 c. If there is no less senior employee in a position once held, the
 employee faced with lay-off may bump less senior employees in
 positions within the City which the employee is qualified to perform,
 as determined by the City.

 3. Employees who transfer or bump into a position under Section 2 above will
 be compensated at the rate provided in the City's pay plan for that position.

 Employees cannot transfer or bump into a promotional position nor can
 they transfer or bump into a union-covered position. Part-time employees
 cannot transfer or bump into full-time positions.

 4. Employees faced with lay-off may accept lay-off rather than transfer or
 bump into a position under subsection 2 above.
 5. Employees who are in fact laid off will receive any separation pay to which
 they may be entitled.

 6. Employees who are laid off will have a 15 month recall to the classification
 in the Department from which they were laid off. Employees will be
 recalled in order of seniority.


IX. MISCELLANEOUS PROVISIONS

 30



 Page 51
A. Political Activity

 While employed by the City, employees may seek or accept nomination or election
 to any non-partisan office in municipal government (i.e., City or School office),
 however, in connection with an employee’s campaign, no employee will use City
 facilities, equipment, materials or supplies to advocate for his or her candidacy, or
 discuss the employee’s campaign with city or school personnel during the workday,
 or use any time during the work day for campaigning purposes.

 At no time may an employee use his or her City position, nor use City facilities,
 equipment, materials or supplies to communicate, organize, assist or advocate for
 or against any candidate for elected office, including but not limited to his or her
 own candidacy, whether for a local, state or federal office, and whether the
 employee is on or off duty at the time of such use.

 While employed by the City, employees are to refrain from using their influence
 publicly for or against any candidate for municipal elective office. City employees
 are not to circulate campaign literature for elective city officials, nor be in any way
 concerned with soliciting or receiving subscriptions, contributions, or political
 service from any person on behalf of any candidate for municipal elective office.
 Nothing in this paragraph shall be construed to apply to an employee who is
 seeking any office in municipal government while that employee is working on his
 or her campaign, subject to the limitation in the paragraphs above.

 This rule is not to be construed to prevent any City employees from becoming, or
 continuing to be, members of any political organization, from attending political
 meetings, or from voting with complete freedom in any election.

 Employees who are working directly or indirectly under a federal funding status
 must check with the U.S. Civil Service Commission as to the extent to which
 participation in State or Federal political activities is allowed under Federal Law.

B. Conflicts of Interest

 In addition to adhering to general standards of conduct for employees of any
 organization, public employees are expected to treat everyone they serve with
 complete impartiality and are prohibited from using their official position for
 personal profit or the profit of friends and family. Employees must comply with the
 conflict of interest standards of State law 30-A M.R.S.A. Sec. 2605.

 Outside employment which must be reviewed by the City as part of its regulatory or
 reviewing authority is prohibited. Employees must also comply with any
 departmental rules and regulations regarding outside employment.

 31



 Page 52
C. Employment of Relatives

 1. The City discourages the employment of individuals to work in a direct or
 indirect line of supervision with an employee who is a member of the
 individual’s family. The City further prohibits an officer or employee of the
 City from using his or her official position to advance, advocate, hire or
 promote the employment of that officer’s or employee’s relatives in any
 City position. An officer or employee of the City may provide a personal
 reference for a relative who is applying for a position over which that officer
 or employee does not exercise any direct or indirect supervision or control.
 An officer or employee of the City shall not be involved in the hiring process
 for any position if it involves a relative.

 2a. The City reserves the right to refuse to appoint a person to a position in the
 same department, division or facility, wherein his or her relationship to
 another employee has the potential for creating adverse impact on
 supervision, safety, security or morale, or involves a potential conflict of
 interest. The Department Head shall make the determination as to whether
 such adverse impact exists, subject to review by the City Manager.

 2b. In the case of a finding of adverse impact, the Department Head shall make
 a reasonable effort to see if a written management plan governing the
 assignment and evaluation of such employee can be put in place which
 would avoid the conflict and mitigate any adverse impact, prevent
 favoritism or other improper influences. Any such management plan will be
 subject to approval by the City Manager at the time of hire and to ongoing
 oversight by the Director of Human Resources. If the structure or size of
 the Department does not permit such a management plan, then the City
 may refuse to appoint that person to the position.

 3. The provisions of this section shall apply when a relationship is formed after
 the date of hire such as through a marriage or domestic partnership.

 4. An individual violating these provisions, or hired in violation of these
 provisions as a result of applicant failure to disclose a relationship, may be
 subject to disciplinary action, up to and including termination.

 5. For purposes of the above provisions, a "relative" is defined as: grandfather,
 grandmother, father, mother, son, daughter, child of domestic partner,
 grandson, granddaughter, brother, sister, uncle, aunt, first cousin, nephew,
 niece, husband, wife, domestic partner, father-in-law, mother-in-law,
 son-in-law, daughter-in-law, brother-in-law, sister-in-law, step-father,
 step-mother, step-son, step-daughter, step-brother, step-sister,
 half-brother, or half-sister.
 32



 Page 53
6 The City Manager may provide specific instructions concerning
 employees or applicants affected by this provision in a manner to
 safeguard the hiring and promotional opportunities of the individual as
 well as the objectivity of the process.




 33



 Page 54
Running a Local Municipal Ethics Board:
Ten Steps to a Better Board
By Steven G. Leventhal

 The members of a local her own personal interest. Has she acted immorally?
municipal ethics board are Certainly not. However, our well-meaning municipal
often respected members employee has acted unethically, because even an in-
of the community with no nocent conflict of interest tends to undermine public
background in government. confidence in government and justifies the suspicion
They may be drawn from that an official action was motivated by personal con-
the clergy, and have strong siderations rather than by the public interest.
grounding in the principles
 It is unhelpful to think of government ethics in
of their respective faiths;
 moral terms, because doing so implies a moral failure
they may be accomplished
 among municipal officers and employees, and breeds
members of the Bar, thor-
 resentment among the honest majority, who take right-
oughly versed in the code of
 ful pride in their personal integrity.
professional responsibility
that governs the practice of law, or they may be civic
minded citizens, committed to public service and confi- “Logic and experience indicate that the
dent in the wisdom of their own moral compasses.
 vast majority of municipal officers and
 But even with these impressive credentials, board employees are honest, and genuinely
members may be uncertain of the board’s purpose
and function, unaware of the standards of conduct
 wish to do the right thing.”
applicable to municipal officers and employees, and
 Some laws prohibit conduct that is inherently
unfamiliar with the structure, operation and language
 immoral, such as murder and larceny. This type of
of government.
 misconduct is known as a malum in se. It is prohibited
 This article is intended to offer them guidance in because it is wrong. But some laws prohibit and even
organizing and running their boards. criminalize conduct that would otherwise be perfectly
 moral because we find it a safer, more economical or
 more efficient way to organize our society. The Vehicle
Step 1: Understand Your Mission
 and Traffic Law and the Internal Revenue Code are ex-
 Logic and experience indicate that the vast major- amples of laws that prohibit conduct that is not inher-
ity of municipal officers and employees are honest, and ently immoral. This type of misconduct is known as a
genuinely wish to do the right thing. The dual goals malum prohibitum. It is wrong because it is illegal.
of a municipal ethics program are to assist municipal
officers and employees in avoiding ethical missteps Similarly, a local municipal ethics code does not
before they occur, and to assure a skeptical public that prohibit conduct because the conduct is morally
the decisions of its government are based on the public wrong.1 Rather, it regulates official conduct in order to
interest and not on the private interests of the decision achieve the dual goals of assisting honest officers and
makers. employees in avoiding ethical missteps before they oc-
 cur, and inspiring public confidence in government by
 Many people use the words “morality” and “eth- encouraging high standards of conduct among munici-
ics” as if they had the same meaning. This is under- pal officers and employees. Ethics regulations are the
standable, because their meanings are similar. Morality rules of the road for official conduct.
comes from the Latin word mores, for the characteristic
customs and conventions of a community. Ethics comes
from the Greek word ethos, for the characteristic spirit Step 2: Learn How to Analyze a Government
or tone of a community. But in the applied context of Ethics Problem
government ethics, it is inaccurate and unhelpful to So where do you find these rules of the road? They
think of these words as having the same meanings. are scattered about in many legal nooks and crannies,
 including the State Constitution, various state and
 To illustrate the difference between morality and
 local statutes, published court decisions, and agency
ethics, consider that an honest municipal employee,
 regulations. But don’t be discouraged. In New York,
recognizing that she has a conflict of interest in a
 most ethics problems can be analyzed by considering
particular matter, may choose the official action that
 three questions:
advances the public interest, even at the expense of

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 • Does the conduct violate Article 18 of the New foster public confidence in government. An appearance
 York General Municipal Law? of impropriety undermines public confidence. There-
 fore, courts in some cases have found that government
 • If not, does the conduct violate the local munici-
 officials have an implied duty to avoid conduct that se-
 pal code of ethics? riously and substantially violates the spirit and intent
 • If not, does the conduct seriously and substan- of ethics regulations, even where no specific statute is
 tially violate the spirit and intent of the law, and violated.10
 thus create a prohibited appearance of impropri- Accordingly, the third question in this protocol
 ety? for analyzing government ethics problems—Does the
 Article 18 of the New York General Municipal Law conduct seriously and substantially violate the spirit
is the state law that establishes minimum standards of and intent of the law, and thus create a prohibited ap-
conduct for the officers and employees of all munici- pearance of impropriety?—may well be posed instead
palities within the State, except the City of New York.2 as: How will this conduct look on the front page of the
Among other things, Article 18 prohibits a municipal local newspaper?
officer and employee from having a financial interest The goal of prevention—and just plain fairness—
in certain municipal contracts that he or she has the requires that officers and employees have clear ad-
power to control individually or as a board member,3 vance knowledge of what conduct is prohibited, and
from accepting gifts or favors worth $75 or more what conduct is not. Discernable standards of conduct
where it might appear that the gift was intended to help dedicated municipal officers and employees to
reward or influence an official action,4 from disclosing avoid unintended violations and unwarranted suspi-
confidential government information,5 from receiving
 cion. When the board finds that there is a prohibited
payment in connection with any matter before his or
 appearance of impropriety, the finding should have
her own agency,6 and from receiving a contingency fee a rational basis, and the board’s reasoning should
in connection with a matter before any agency of the be clear and convincing. Such a finding should be
municipality.7 reserved for the rare cases involving conduct that is
 If you find that the conduct under review violates contrary to public policy, and that raise the specter
Article 18, you are finished with your analysis. The of self-interest or partiality. It should not be found in
conduct is prohibited by state law and you need go cases where the improper appearances are speculative
no further. But if you find that the conduct does not or trivial.11
violate Article 18, you must ask yourself the second Where a contemplated action by an official might
question: Does the conduct under review violate the create an appearance of impropriety, the board should
local municipal code of ethics? recommend that the official refrain from acting. But
 Local municipalities are authorized by Article 18 ethics boards should be restrained in finding, after the
to adopt their own codes of ethics.8 A local ethics code fact, that an official’s conduct violated the implied duty
may not permit conduct that is prohibited by Article to avoid appearances of impropriety. They should be
18. However, a local code may be stricter than Article especially restrained in finding that a member of a vot-
18. It may prohibit conduct that Article 18 would ing board, and in particular a legislator, was required
allow.9 Local ethics codes typically fill gaps in the to refrain from participating in a matter called for a
coverage of Article 18 by, among other things, closing vote, because an abstention by a member of a vot-
the “revolving door” (post-employment contacts with ing body will normally be counted as a “nay” vote,12
the municipality), establishing rules for the wearing and because the recusal of a legislator disenfranchises
of “two hats” (the holding of two government posi- voters.
tions, or moonlighting in the private sector) and, in
some cases, prohibiting “pay to play” practices and Step 3: Set the Right Tone—Be Credible
the political solicitation of subordinates, vendors and
contractors. By setting the right tone, the board can bet-
 ter advance the dual goals of helping the municipal
 If, after determining that the conduct under re- workforce avoid ethical missteps before they occur and
view does not violate Article 18, you find that it does inspiring public confidence in government decision
violate your local ethics code, your analysis is done. making.
The conduct is prohibited by local law. But, if you find
that the conduct neither violates Article 18 nor the One clear lesson of recently publicized scandals
local code of ethics, there is yet another question that is that an otherwise forgiving public will not abide
you must consider. hypocrisy. Board members should scrutinize their own
 investment, business or political activities, and rid
 Ethics regulations are not only designed to pro- themselves of conflicts. They should avoid entangle-
mote high standards of official conduct, but also to ments that might cast doubt on their objectivity.

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 A board that is perceived as politically motivated and to allow for the services of a stenographer when
will have no credibility as the source of ethics advice a hearing is conducted. Because the activities of the
or the arbiter of ethics disputes. Rather than inspire board may sometimes be controversial, its expendi-
public confidence, it will reinforce public cynicism. tures for these purposes, within the limits of a modest
Board members should avoid partisanship in their budget, should not be subject to external approval.
official and unofficial activities. They should banish
political considerations from their deliberations and
 Step 5: Get the Message Out—Be Proactive
decision-making.
 Many local ethics boards never meet, and are com-
 Most ethics inquiries escape public notice. But pletely ignored by their respective municipalities. But
some draw intense public attention and attract press because the municipal ethics program is designed to
inquiries. The board is a deliberative body and speaks help officers and employees avoid inadvertent ethical
only through its duly rendered opinions and deci- violations, it is essential that the board actively pro-
sions. Individual board members should avoid public mote awareness among them of their ethical obliga-
statements that may send mixed messages, and may tions, and encourage them to seek ethics advice when
undermine the force and credibility of the board’s questions arise.
determinations.
 Ethics codes tend to be drafted by lawyers, written
 According to Socrates, there are four things that a in legalese, and unintelligible to the common reader. Yet
judge must do: listen patiently, speak wisely, deliberate the municipal workforce is mostly composed of non-
soberly, and decide impartially. This ancient admoni- lawyers, all of whom must adhere to the code of ethics.
tion is a worthy guide for the members of a municipal Therefore, every municipality should prepare and
ethics board in the discharge of their official duties. distribute a plain-language guide to government ethics
 no more than two or three pages in length.15
Step 4: Empower the Board to Control Its Own The plain-language guide should include a short
Business—Be Independent and simple statement of purpose. It should note that
 There is an understandable tendency for a munici- the guide was prepared to assist officers and employ-
pal administration to exercise direct or indirect influ- ees in avoiding actual or potential conflicts of interest,
ence over its appointed boards and commissions. This but that it is not intended to replace the actual text of
may occur with the best of intentions. For example, the local code of ethics. It should incorporate—in plain
a municipal attorney or other official appointed to a language—the mandates of Article 18 and the stan-
board may feel that he or she is in the best position to dards adopted by the local municipality in its code of
call meetings, set the agenda, or guide the board in ethics, and should advise against conduct that creates
its deliberations. But an ethics board dominated by an appearance of impropriety.
administration insiders cannot exercise independent
 The plain language guide should inform municipal
judgment and oversight.
 officers and employees that they may obtain free, confi-
 To ensure both the reality and the perception that dential ethics advice from the board of ethics, and pro-
the board can and does operate independently, the vide the board’s contact information. It should encour-
board should select its own chair. Like all boards, the age officers and employees to resolve any doubts they
ethics board must conduct its business at meetings at- may have about their ethical obligations by obtaining
tended in person by a quorum of its members.13 Meet- the board’s advice before acting.
ings should be called by the chair, or by a majority of
 Ethics training is another important means of get-
the members.
 ting the message out. A regular series of educational
 A clerical employee should be appointed by the programs should be conducted at convenient times
municipality to serve as secretary to the board, under and places so that they may be widely attended by the
direction of the chair. The secretary should be re- municipal officers and employees. Experience indicates
sponsible for sending notices, receiving inquiries and that daytime programs will be widely attended by
complaints, keeping minutes, maintaining the trans- employees, even if attendance is not mandatory. Eve-
actional, applicant and annual disclosure statements ning programs are generally more convenient for the
filed with the board,14 and keeping an indexed file of members of boards and commissions, many of whom
the board’s opinions and decisions. hold full-time outside employment.

 Under normal circumstances, the municipal at-
torney will serve as counsel to the board. The board Step 6: Master the Art of Giving Ethics Advice
should have a modest but sufficient budget to obtain The day will come. You may be at a cocktail party,
independent legal advice on the rare occasions when or at a community event. You will be approached by an
the municipal attorney may have a conflict of interest, acquaintance who has heard of your appointment to

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the ethics board and wishes to discuss an ethics ques- outside job would be compatible with the employee’s
tion. But beware. You probably won’t have all the facts government duties.18 Untimely ethics advice is use-
that you will need to give a proper answer. Certainly, less to the inquiring officer or employee, discourages
you don’t want to be cited as having approved a code officers and employees from seeking advice before act-
violation. Ethics inquiries often involve the exercise ing, and undermines the purpose of preventing ethics
of judgment. The exchange of opinions among board violations before they occur.
members is an important part of the decision-making
 The board’s job is to interpret the obligations of
process. All ethics inquiries should be referred to the
 officers and employees under the code of ethics and
full board for determination.
 related authorities. Not every question posed to the
 The board should respond only to written requests board of ethics will raise a government ethics issue. For
for ethics advice, and should only decide actual “cases example, the professional conduct of attorneys—even
and controversies.” Fact-finding is a critical step in municipal attorneys—is governed by the Lawyer’s
rendering ethics advice. Only the facts of a particular Code of Professional Responsibility.19 Officers and em-
case will determine the issues that you must consider. ployees seeking advice about the professional obliga-
The particular facts of an actual case will often deter- tions of attorneys should be referred to the professional
mine the outcome of an ethics inquiry. When a request ethics committee of the local bar association. Inquiries
is made for general information about the ethics code, that pose questions of municipal law should be re-
the board should respond by providing the inquiring ferred to the municipal attorney.
party with a copy of the plain-language guide.
 In drafting your advisory opinions, remember that
 The board of ethics should maintain a record of confidentiality advances the purposes of the municipal
the question that was posed, and the information that ethics program by encouraging officers and employees
it relied on in reaching its opinion. It should carefully to seek advice before acting. Where possible, an ad-
consider whether it has all the facts that it needs to visory opinion should omit the name of the inquiring
form an opinion. Ethics questions are often more com- officer or employee, and any other identifying facts.
plicated than they appear. If an employee holds a civil
 Your task will be easier if you develop a template
service title, you may need to review the job descrip-
 for drafting opinions. First frame the issue presented.
tion associated with that title. But perhaps the employ-
 Next, set forth the governing authority. Discuss how
ee is working “out of title,” performing functions that
 the law applies to the facts, and then state the board’s
are not part of his or her job description. Conflicts may
 conclusion. Advisory opinions should identify which
sometimes arise based on the duties associated with a
 board members participated in the matter, and any
job title, or they may arise based on the duties actually
 members who may have recused themselves.20 They
performed. You may need to know whether a particu-
 should be dated and signed by the chair, and delivered
lar employee is a “policy maker,” or is in a position to
 only to the inquiring officer or employee unless he or
influence policy making. You may need to know how
 she consents to a broader distribution.
a particular agency interacts with another. Once you
have gathered your facts, you still may not know the In framing the issue, keep in mind that if the ad-
whole story. To avoid setting a bad precedent, limit the vice applies only to the inquiring officer or employee,
application of your opinion to the facts presented. the board’s opinion is more likely to be exempt from
 disclosure under the New York Freedom of Informa-
 Article 18 authorizes a county ethics board to act
 tion Law, and it is more likely that the board’s delib-
with respect to officers and employees of the county,
 erations may be conducted in executive session under
and with respect to officers and employees of a mu-
 the Open Meetings Law.21 On the other hand, deter-
nicipality within the county that has not established its
 minations that are broad declarations of policy may be
own board of ethics.16 A municipal ethics board other
 subject to disclosure under the Freedom of Informa-
than a county board may act only with respect to its
 tion Law, and the proceedings that produce them may
own officers and employees.17 Ethics advice is intend-
 be subject to public access under the Open Meetings
ed to provide a shield against unwarranted criticism
 Law.22 Because officers and employees are more likely
for honest officers and employees, not a sword for use
 to seek ethics advice when their inquiries are treated as
by political or personal foes. Typically, a local munici-
 confidential, local municipal ethics boards should con-
pal ethics board is authorized to give advice only to
 duct their advisory function in a manner that is likely
officers and employees inquiring about themselves.
 to preserve the privacy of the inquiring parties.
 The board should act promptly when it receives a
 Courts give great weight to the advisory opinions
request for ethics advice. Many inquiries will be time
sensitive. For example, an outside job opportunity of local municipal ethics boards.23 In giving ethics
may be lost while a municipal employee waits for the advice, be reasonable and practical. Keep in mind that
ethics board to determine whether the duties of the inconsistent rulings encourage skepticism. But don’t



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ignore the lessons of experience. Respect your own may not have the resources to adequately discharge
precedents, but take a fresh look when warranted. this responsibility on its own without the assistance of
Remember that your goals are to assist honest officers staff assigned by the municipality to handle the daily
and employees in avoiding ethical missteps before administrative and clerical duties that such a program
they occur, and to inspire public confidence in gov- entails.
ernment by encouraging high standards of conduct
 Even where the board of ethics has delegated the
among municipal officers and employees. Treat every
 day-to-day administration of the financial disclosure
request for ethics advice as a teaching opportunity.
 law to staff, it still may be called upon to inspect the
Write advisory opinions that are clear, explanatory and
 annual disclosure statements for the purpose of detect-
educational.
 ing any actual or potential conflicts that they may
 reveal. Undoubtedly, this task will be performed with-
Step 7: Adopt Rules of Procedure for out the assistance of investigators, auditors or forensic
Investigating Complaints experts. The board should exercise care in developing
 Unlike a request for ethics advice, an ethics procedures for the review of annual disclosure state-
complaint can normally be filed by anyone—even ments, and in establishing the parameters of its review,
anonymously—or the board may initiate an investiga- in order to avoid the potential that its members will
tion on its own. Article 18 does not provide guidelines later be blamed for failing to catch an actual or poten-
for the investigation of complaints by a local ethics tial conflict.
board. Particular practices vary from one municipality
to another, based on the board’s mandate as set forth Step 9: Know What to Expect if the Board or Its
in the local code of ethics. Members Are Sued
 Consistent with the authority conferred on the Because they are not “final determinations,”
board by the local code of ethics, the board should the advice given by an ethics board is not subject to
adopt its own rules of procedure for investigating judicial review and reversal.26 As a result, there are
complaints, and have them in place before a complaint few reported cases involving challenges to the deci-
is received or an investigation is required. In adopting sions of local municipal ethics boards. But when an
its rules, the board should be mindful of the funda- ethics board engages in the quasi-judicial function of
mental requirements of due process: notice and an determining whether an ethics violation has occurred,
opportunity to be heard.24 or imposes a fine or other penalty, its decisions will be
 subject to judicial review in a proceeding under Article
 The board should preserve a record of the com- 78 of the New York Civil Practice Law and Rules.27
plaint, all notices to and from the board, and all evi-
dence that it receives in the course of its investigation In an Article 78 proceeding, the petitioner will
including documents and testimony. The board should have the burden of proving that the board’s determina-
work closely with its counsel to ensure that the result tion was illegal, arbitrary or capricious, that the board
of its investigation will withstand judicial review. (For abused its discretion, or that the decision was unsup-
a discussion of what to expect if the board or its mem- ported by substantial evidence.28
bers are sued, see Step 9.)
 Lawsuits brought against the board will nor-
 If the facts alleged by the complainant or discov- mally be handled by the municipal attorney, or other
ered by the board raise the suspicion that a crime may counsel retained by the municipality, at no cost to the
have been committed, the matter should be referred individual board members. But what if the individual
to the District Attorney. To avoid interfering with the board members are sued by an aggrieved party? The
District Attorney’s investigation or prosecution of the individual members of a local municipal ethics board
case, the board should refrain from acting while the are entitled to a qualified immunity from individual
matter is under investigation or prosecution by the liability where they exercised discretion within the
District Attorney’s office. scope of their official duties, and where they have not
 violated a plaintiff’s constitutional rights.29
Step 8: Develop Procedures for Review of A municipality may, by local law, provide for the
Annual Disclosure Statements defense and indemnification of its officers and employ-
 In municipalities having populations of 50,000 or ees in civil claims arising out of their acts or omissions
more, the board of ethics is usually charged with the while acting within the scope of their official duties,
responsibility of administering the financial disclosure except where the claim is brought by or on behalf of
law adopted pursuant to Article 18.25 Depending upon the municipality. The indemnification will not apply to
the number of officers and employees required to file judgments based on intentional wrongdoing or reck-
financial disclosure statements, the board of ethics lessness, or to awards of punitive damages.30 Where


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the municipality provides an officer or employee with Articles by Professors Mark Davies, Patty Salkin,
defense and indemnification, any settlement of the Les Steinman and others are available online. For
claim is subject to approval by the municipality.31 example, back issues of this publication, the NYSBA/
 MLRC Municipal Lawyer, are available to members
 The municipality may purchase insurance to fund of NYSBA’s Municipal Law Section on its Web site at
its obligations under the indemnity,32 or it may pur- www.nysba.org/MunicipalLawyer. The Association’s
chase liability insurance to protect its officers and em- Municipal Law Section is a ready source of ethics
ployees from liability arising out of the performance education and support. An extensive online ethics
their official duties even without a local law providing library is available at the Web site of the New York City
for the defense and indemnification of officers and em- Conflicts of Interest Board.
ployees by the municipality.33 Board members should
inquire whether their municipality has adopted a local An extensive library of local municipal codes is
law providing for the defense and indemnification of available on the Web site of “e-codes.” Advisory opin-
its officers and employees, and whether the munici- ions of the New York Attorney General and the New
pality has purchased insurance to protect them from York Comptroller are available on their respective Web
liability arising from the performance of their official sites. Helpful information is available online to mem-
duties. bers of the New York State Association of Counties,
 the Association of Towns of the State of New York, the
 A lawsuit against the board of ethics or its mem- New York Conference of Mayors and Municipal Offi-
bers may pit the interests of branches, departments or cials, and the Conference on Government Ethics Laws.
agencies of government, or those of individual officers
or employees, against one another, and may present Congratulations and good luck. Your work is
the municipal attorney with a professional conflict of among the most important in government.
interest. It is sometimes difficult to determine whether
a municipal attorney has a professional conflict of
 Endnotes
interest because he or she may, at various times, owe
 1. In some instances, a municipal officer or employee may engage
a duty of loyalty to one or more individual officers in morally culpable misconduct. But such cases are more likely
or employees, branches, departments or agencies of to be prosecuted by the local district attorney’s office than
government, the government as a whole, or directly by the local municipal ethics board, and they are more likely
to the public.34 This distinction is important because to be prosecuted as violations of the New York Penal Law
 than as violations of the state or local codes of ethics. See, e.g.,
conversations with a municipal attorney will not be Penal Law § 195.00 (official misconduct) and art. 200 (bribery
privileged unless they occur between the municipal involving public servants and related offenses).
attorney and his or her client.35 2. For a helpful summary of Gen. Mun. Law Article 18, see Davies,
 Article 18: A Conflicts of Interest Checklist for Municipal Officer and
 The joint defense of a municipality and the indi- Employees, NYSBA/MLRC Municipal Lawyer, Summer 2005,
vidual members of a municipal board will give rise Vol. 19. No. 3, pp. 10–12.
to a professional conflict where the defendants assert 3. See Gen. Mun. Law §§ 800-805.
inconsistent defenses. A professional conflict would 4. See Gen. Mun. Law § 805-a.
also arise where the individual board members are
 5. Id. N.B. The phrase “confidential information” is not defined
sued for punitive damages, because a municipality in Gen. Mun. Law Article 18. Taken together, the Freedom
cannot be liable for punitive damages.36 Clients may of Information Law (Pub. Off. Law, art. 6) and the Open
waive the professional conflict by giving informed Meetings Law (Pub. Off. Law, art. 7) are a powerful legislative
consent if a disinterested lawyer would conclude that declaration that public policy disfavors government secrecy. See
 Leventhal and Ulrich, Running a Municipal Ethics Board: Is Ethics
defense counsel’s professional judgment would not be Advice Confidential?, NYSBA/MLRC Municipal Lawyer, Spring
impaired by the joint representation.37 In cases where 2004, Vol. 18, No. 2, pp. 22–24. For a suggested definition of
the municipal attorney has a professional conflict of “confidential information” in the context of Gen. Mun. Law,
interest, the indemnified officer or employee is en- Article 18, see Leventhal, Running a Local Municipal Ethics Board:
 Glossary of Municipal Ethics Terms, NYSBA/MLRC Municipal
titled to be represented by private counsel of his or her Lawyer, Spring 2006, Vol. 20, No. 2, pp. 20–21 (Confidential
choice.38 Information. Information in any format that is either (1)
 prohibited by federal or state law from disclosure to the public,
 or (2) prohibited from disclosure by local law, ordinance, or
Step 10: Take Advantage of Ethics Resources resolution of the municipality, and exempt from mandatory
 disclosure under the New York State Freedom of Information
 We are fortunate that several dedicated govern- Law (FOIL) and the New York State Open Meetings Law).
ment ethicists have labored in recent years to orga-
 6. Supra, n. 4.
nize the subject of government ethics into a coherent
 7. Id.
discipline, and to develop a body of written materials
available to assist local municipal ethics boards in do- 8. See Gen. Mun. Law § 806.
ing their important and difficult work.



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9. See Davies, Enacting a Local Ethics Law—Part I: Code of Ethics, Administration, NYSBA/MLRC Municipal Lawyer, Winter
 NYSBA/MLRC Municipal Lawyer, Summer 2007, Vol. 21, No. 2008, Vol. 22, No. 1, pp. 11–16.
 3, pp. 4–8. 25. See Gen. Mun. Law §§ 810, 811, 812.
10. See, e.g., Zagoreos v. Conklin, 109 A.D.2d 281, 491 N.Y.S.2d 358 26. See Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of
 (2d Dep’t 1985); Tuxedo Conservation and Taxpayer Association v. City of N.Y., 5 N.Y.3d 30 (2005), reargument den. 5 N.Y.3d 824
 Town Board of Tuxedo, 69 A.D.2d 320, 418 N.Y.S.2d 638 (2d Dep’t (2005); Stop-The-Barge v. Cahill, 1 N.Y.3d 218 (2003); Scarpati-
 1979). Reilly v. Town of Huntington Bd. of Ethics & Fin. Disc., 300
11. See Peterson v. Corbin, 275 A.D.2d 35, 713 N.Y.S.2d 361 (2d Dep’t A.D.2d 404, 751 N.Y.S.2d 753 (2d Dep’t 2002); Neale v. Cohen,
 2000). 281 A.D.2d 421, 721 N.Y.S.2d 110 (2d Dep’t 2001); Hammer
 v. Veteran, 86 Misc. 2d 1056, 386 N.Y.S.2d 170 (Sup. Ct. West.
12. See Gen. Const. Law § 41.
 1975), aff’d, 53 A.D.2d 629, 385 N.Y.S. 2d 1017 (2d Dep’t 1976).
13. Pub. Off. Law §§ 100–111 (Open Meetings Law); see Freeman,
 27. See, e.g., Gray v. Epstein, 2008 N.Y. Slip Op 51706U (Suff. Co.
 Board of Ethics: Public Disclosure? NYSBA/MLRC Municipal
 Sup. Ct. 2008) (Petitioner appealed decision of the Town of
 Lawyer, Spring 2008, Vol. 22, No. 2, pp. 12–15; Leventhal
 Smithtown Ethics Board that she violated the town code of
 and Ulrich, Running a Municipal Ethics Board: Is Ethics Advice
 ethics, and imposed a civil penalty of $3,500; court affirmed the
 Confidential?, NYSBA/MLRC Municipal Lawyer, Spring 2004,
 board’s decision, but set aside the monetary penalty because
 Vol. 18, No. 2, pp. 22–24.
 the Code did not provide the Ethics Board with the authority to
14. For a thorough discussion of the types of disclosure statements impose monetary penalties.).
 typically filed with a local municipal ethics board, see Davies,
 28. See N.Y. Civ. Prac. Law & Rules § 7803.
 Enacting a Local Ethics Law—Part II: Disclosure, NYSBA/MLRC
 Municipal Lawyer, Fall 2007, Vol. 21, No. 4, pp. 8–17. 29. See Shechter v. Comptroller of City of New York, 79 F.3d 265 (2d
 Cir. 1996).
15. A library of plain-language guides and leaflets is posted on the
 Web site of the New York City Conflicts of Interest Board. 30. Pub. Off. Law § 18 (Defense and indemnification of officers and
 public entities).
16. See Gen. Mun. Law §§ 808(2)-808(4).
 31. Id.
17. Id.
 32. Id.
18. In the absence of a constitutional or statutory prohibition, an
 official may hold two public offices, or a public office and a 33. Gen. Mun. Law § 52 (Liability insurance for officers and
 position of secondary employment, unless the duties of the employees).
 two positions are incompatible. See People ex rel. Ryan v. Green, 34. See Salkin, Beware: What You Say to Your Government Lawyer May
 58 N.Y. 295 (1874). Be Held Against You—The Erosion of the Government Attorney-
19. N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200. Client Confidentiality, 35 Urb. Law 283 (2003); Salkin and
 Phillips, Program On Law And State Government Fellowship
20. Where a board member recuses himself or herself due
 Symposium: Integrity in Public Service: Living Up to the Public
 to a conflict of interest, the member should refrain from
 Trust? Eliminating Political Maneuvering: A Light in the Tunnel
 participating in the discussion, deliberations or vote on the
 for the Government Attorney-Client Privilege, 39 Ind. L. Rev. 561
 matter. See 1995 Op. Atty. Gen. 2. For a helpful discussion
 (2006).
 of the principles applicable to recusal and abstention, see
 Steinman, Recusal and Abstention from Voting: Guiding Principles, 35. Id.
 NYSBA/MLRC Municipal Lawyer, Winter 2008, Vol. 22, No. 1, 36. See Cook County, Illinois v. U.S. ex rel. Chandler, 538 U.S. 119,
 pp. 17–19. 129 (2003) (citing Newport v. Fact Concerts, Inc., 453 U.S. 247,
21. See Leventhal and Ulrich, Running a Municipal Ethics Board: Is 259–260 (1981); Sharapata v. Islip, 56 N.Y.2d 332 (1982).
 Ethics Advice Confidential?, Municipal Lawyer, Spring 2004, Vol. 37. N.Y. Comp. Codes R. & Regs. Tit. 22, § 1200.24(c)(DR 5–105).
 18, No. 2, pp. 22-24; N.Y. Comm. on Open Gov’t. FOIL Adv.
 Op. 8922 (1995); OML Adv. Ops. 2269 (1993), 2805 (1997). 38. Pub. Off. Law § 18 (Defense and indemnification of officers and
 public entities).
22. Id.; see also Freeman, Board of Ethics: Public Disclosure?, NYSBA/
 MLRC Municipal Lawyer, Spring 2008, Vol. 22, No. 2, pp.
 12–15. Steven G. Leventhal is an attorney and certified
23. See Byer v. Town of Poestenkill, 232 A.D.2d 851, 648 N.Y.S.2d 768 public accountant. He is a partner in the Roslyn law
 (3d Dep’t 1996); Parker v. Gardiner Planning Bd., 184 A.D.2d firm of Leventhal and Sliney, LLP. Steve is the for-
 937, 585 N.Y.S.2d 571 (3d Dep’t 1992); DiLucia v. Mandelker, 110
 A.D.2d 260, 263, 493.N.Y.S.2d 769, 771 (1st Dept. 1985), aff’d, 68 mer chair of the Nassau County Board of Ethics. He
 N.Y.2d 844 (1986). currently serves as Village Attorney for the Village
24. For further advice on investigations and enforcement of Muttontown, and as counsel to several municipal
 procedures, see Davies, Enacting a Local Ethics Law—Part III: boards. SLeventhal@ls-llp.com.




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FROM RUMBLINGS TO REALITY: ONE CITY’S
STORY OF ETHICS REFORM

 Julie Meadows-Keefe*


 I. INTRODUCTION

 We will never bring disgrace on this our City by an act of
 dishonesty or cowardice. We will fight for the ideals and
 Sacred Things of the City both alone and with many. We will
 revere and obey the City’s laws, and will do our best to incite a
 like reverence and respect in those above us who are prone to
 annul them or set them at naught. We will strive unceasingly
 to quicken the public’s sense of civic duty. Thus, in all these
 ways, we will transmit this City not only, not less, but greater
 and more beautiful than it was transmitted to us.1

 Thousands of years after the authorship of the Athenian
Oath, this Article tells one City’s story of the evolution of its
ethics program and reflects my experience as the first Ethics
Officer in the City of Tallahassee.2 It provides both a history of
Tallahassee’s Independent Ethics Board3 and a framework of
sorts for other local governments to consider as they enhance or
develop their own ethics programs.


*
  © 2017, Julie Meadows-Keefe. All rights reserved. Independent Ethics Officer, City of
Tallahassee. J.D., Florida State University, 1993; B.A., Stetson University, 1990. Phi Beta
Kappa; Florida State Law Review; Florida State Moot Court Team. The Author would like
to thank the “original six” Independent Ethics Board Members, Chair Lila Jaber (Stetson,
B.A. and J.D.), co-chair Richard Herring, Cecil Davis Funmi Ojetayo, Tom Friedman, and
Renee McNeill for actively helping to build this Board from the ground up. The Author
would like to dedicate this Article to retired Stetson faculty member Dr. T. Wayne Bailey,
who influenced her and so many others to pursue careers in law and government.
 1. The ATHENIAN OATH, NAT’L LEAGUE OF CITIES, http://www.nlc.org/build-skills-and-
networks/resources/cities-101/city-factoids/the-athenian-oath (last visited Apr. 18, 2017).
 2. Taking the Lead on Ethics, CITY OF TALLAHASSEE (Sept. 30, 2014), https://www
.talgov.com/main/news/4393.aspx. My perspective on being the Ethics Officer provided
fodder for a talk, which I gave at a TEDx event at Florida State University. Julie
Meadows-Keefe, Exiting the Echo Chamber to Enter Civic Engagement (TEDx Talk Video
June 29, 2016), https://www.youtube.com/watch?v=qzDwygnrDsc.
 3. Ethics Board: Background Information, CITY OF TALLAHASSEE, available at
https://www.talgov.com/main/ethics.aspx (last visited Apr. 18, 2017).




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590 Stetson Law Review [Vol. 46

 The media, polls, and widely expressed citizen attitudes
would seem to indicate that, overall, people lack high levels of
trust in government.4 However, Florida’s Constitution declares
that “[a] public office is a public trust.”5 In 1968, Florida was one
of the first states to adopt an ethics code. It went on to establish
the Florida Commission on Ethics in 1976.6 The Florida Ethics
Code contains standards of ethical conduct and disclosures
applicable to all public officers, employees, candidates, lobbyists,
and others involved with Florida’s state and local government.
The Code, however, does not apply to judges.7
 The “ethics law[s] rest[] upon a triad of provisions: an
understandable and comprehensive Code, . . . sensible disclosure,
and a reasonable enforcement mechanism.”8 Issues to grapple


 4. See, e.g., Beyond Distrust: How Americans View Their Government, PEW RES.
CENTER (Nov. 23, 2015), http://www.people-press.org/2015/11/23/1-trust-in-government-
1958-2015/ (providing a survey sample of citizens’ concerns regarding the ability of the
government to solve important national problems); but see Justin McCarthy, Americans
Still Trust Local Government More Than State, GALLUP (Sep. 22, 2014),
http://www.gallup.com/poll/176846/americans-trust-local-government-state.aspx
(indicating that citizens tend to have more trust in local government than in national
government).
 5. FLA. CONST. art. II, § 8. See also History, FLA. COMMISSION ON ETHICS,
http://www.ethics.state.fl.us/AboutUs/History.aspx (last visited Apr. 18, 2017) (describing
the implementation of Florida’s ethical standards for public officials in order to protect the
public trust against abuses); Guide to the Sunshine Amendment and Code of Ethics for
Public Officers and Employees, FLA COMMISSION ON ETHICS 1 (2016), http://www.ethics
.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (describing the purpose of
the Code of Ethics as “to ensure that public officials conduct themselves independently
and impartially, not using their offices for private gain other than compensation provided
by law”).
 6. FLA. COMMISSION ON ETHICS, supra note 5, at 1.
 7. FLA. STAT. § 112.311(5) (2016).
 8. Mark Davies, Keeping the Faith: A Model Local Ethics Law––Content and
Commentary, 21 FORDHAM URB. L.J. 61, 68 (1993) [hereinafter Keeping the Faith]. See
also Wyzykowski v. Rizas, 626 A.2d 406, 414 (N.J. 1993) (citing the “Pane Principles,”
which identify the various circumstances requiring disqualification for ethical challenge).
These include:
 (1) “Direct pecuniary interests,” when an official votes on a matter benefiting
 the official’s own property or affording a direct financial gain; (2) “Indirect
 pecuniary interests,” when an official votes on a matter that financially
 benefits one closely tied to the official, such as an employer, or family member;
 (3) “Direct personal interest,” when an official votes on a matter that benefits a
 blood relative or close friend in a non-financial way[;] . . . and (4) “Indirect
 Personal Interest,” when an official votes on a matter in which an individual’s
 judgment may be affected because of membership in some organization and a
 desire to help that organization further its policies.
Id. (quoting Michael A. Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II,
New Jersey Municipalities at 8–9 (Mar. 1980)).




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2017] One City's Story of Ethics Reform 591

with in government ethics include using public office for private
gain; recusal, gifts; conflicts of interest; disclosure; political
solicitation; improper influence of officials by private persons;
outside employment; and revolving doors, which speaks to
leaving a public-sector job and going into the private sector
utilizing connections made in public service.9 “Appearances and
public perception play an enormously important role in the
effectiveness of officials and in the well-being of their
communities.”10 Adding complexity to this situation is that
conduct, which presents poor optics to the public, does not always
violate any federal, state, or local ethics law––it simply fails to
pass “the smell test.”11 As one court noted, “Whether
conspicuously or not, the co-mingling of business and legislative
interests to date has resulted in a Darwinian hybrid where it is
difficult to discern where the legislative responsibilities separate
from . . . business responsibilities.”12
 The public legitimately expects public officials and employees
to be impartial, responsible, honest, trustworthy, and
independent of outside influence.13 Indeed, most public servants


 9. Keeping the Faith, supra note 8, at 69–71; see also Vincent R. Johnson, Ethics in
Government at the Local Level, 36 SETON HALL L. REV. 715, 728 (2006) (identifying a
similar list of concerns to be addressed in an effective local government ethics code);
Deborah Markowitz, A Crisis in Confidence: Municipal Officials Under Fire, 16 VT. L.
REV. 579, 597 (1992) (listing a similar group of ethical concerns faced by municipal
officials); Robert Wechsler, Revolving Door Provisions in Local Government Ethics Codes,
CITYETHICS.ORG (Mar. 23, 2010), http://www.cityethics.org/content/revolving-door-
provisions-local-government-ethics-codes (discussing specific ethical issues involved in
allowing public officials to move between the public and private sector).
 10. Keeping the Faith, supra note 8, at 66; see also John M. Carbone, Ethics: More
Than Not Being Indicted, N.J. LAW., December 2006, at 29 (stating that a public official,
independently of his good intentions, will be judged by his acts).
 11. See, e.g., Patricia E. Salkin, Ethics in Land Use: Using Ethical Allegations as a
Sword Rather as a Shield, 33 REAL EST. L.J. 100, 100–01 (2004) [hereinafter Ethics in
Land Use] (discussing courts’ findings of ethical misconduct in land use cases in which
there has not been a particular violation of state or federal law); Patricia E. Salkin, Ethics
Allegations in Land Use Continue to Fill the Court Dockets, 26 ZONING & PLAN. L. REP. 1,
1–3, 6–7 (Apr. 2003) (providing a sample of land use cases, some of which were decided by
the courts upon considerations of appearance of improper ethical conduct); Patricia E.
Salkin, Municipal Ethics Remain A Hot Topic in Litigation: A 1999 Survey of Issues in
Ethics for Municipal Lawyers, 14 BYU J. PUB. L. 209, 210 (2000) (discussing legal ethics
considerations for municipal lawyers, including the concept of “community standards,”
which have the potential to make conduct unacceptable behavior).
 12. Ethics in Land Use, supra note 11, at 107.
 13. “‘Procedural fairness’ is the ethical responsibility of municipal officials both to
conduct proceedings and to fulfill their other duties with openness and objectivity and to
treat all that come before them equally.” Markowitz, supra note 9, at 603–04. It
encompasses such things as “conflict[s] of interest . . . and discrimination.” Id. at 604.




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592 Stetson Law Review [Vol. 46

display these characteristics.14 “However, . . . the very structure
of some local government functions cause ethical conflicts for
elected and appointed officials which exacerbates the difficulty of
conducting assigned responsibilities [openly] and [equitably].”15
“[F]requent incidents of unethical behavior by municipal officials
have a clear deleterious effect on the public’s trust in local
government.”16 There is a strong argument that ethics in
government should start at the local level because actions of local
officials most directly impact citizens.17 Additionally, many
elected officials begin their careers at the local government level
and if ethics are inculcated at the beginning of a career, chances
increase that as the individual moves to a higher office, the high
ethical standards will travel with them. Local governments must
also strike a delicate balance between ensuring that ethical
standards are followed, while simultaneously avoiding overly
burdensome requirements that would cause hardship and
possibly discourage good people from entering public service.18
 Often, county or city ethics initiatives spring up after major
corruption scandals.19 For example, in 2009, Palm Beach County
was named the “Capital of Florida Corruption” by Time
magazine.20 However, there are numerous other instances of

 14. Mark Davies, Governmental Ethics Laws: Myths and Mythos, 40 N.Y.L. SCH. L.
REV. 177, 178 (1995) [hereinafter Governmental Ethics Laws]; see also Patricia E. Salkin,
Failure to Articulate Clear Ethics Rules and Standards at the Local Level Continues to
Haunt Local Land Use Decision Makers, 43 URB. LAW. 757, 773 (2011) (recognizing that
public servants for the most part act honestly and ethically, and discussing the need for
clear ethical rules in land use to encourage this conduct).
 15. Douglas Larson, A Model Ethical Code for Appointed Municipal Officials, 9
HAMLINE J. PUB. L. & POL’Y 395, 395 (1989).
 16. Markowitz, supra note 9, at 605.
 17. Johnson, supra note 9, at 716–17.
 18. Id. at 752–53. See FLA. STAT. § 112.311(2) (2016) (establishing that conflict of
interest rules should be designed in a way not to unnecessarily prevent the hiring of those
best qualified to serve as public servants); Governmental Ethics Laws, supra note 14, at
181 (“[E]thics regulations must encourage, not discourage, good citizens from serving in
government. If they do not do that, they have failed and belong in the rubbish heap.”).
 19. See Michael Josephson, The Peculiar Concept of Ethics Laws, CITY OF
JACKSONVILLE, http://www.coj.net/departments/ethics-office/docs/the-peculiar-concept-of-
ethics-laws.aspx (last visited Apr. 18, 2017) (“Historically, legislative bodies have been
reactive rather than proactive, doing only what they absolutely must. Thus, existing laws
often are a hodgepodge of regulations designed to prevent reoccurrence of specific past
improprieties. That’s a big part of the problem.”).
 20. Hector Florin, Palm Beach: The New Capital of Florida Corruption, TIME (Jan. 10,
2009), http://content.time.com/time/nation/article/0,8599,1870853,00.html. See also
Opinion Staff, Does Palm Beach Still Deserve Moniker, ‘Corruption County’?, PALM BEACH
POST, available at http://opinionzone.blog.palmbeachpost.com/2014/11/25/does-palm-
beach-still-deserve-moniker-corruption-county/ (last updated Nov. 25, 2014) (discussing




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2017] One City's Story of Ethics Reform 593

corruption in Florida and other states dating back decades.21 To
address local concerns, counties and municipalities are permitted
under the Florida Ethics Code to enact local ethics codes or
ordinances that are stricter than the Florida Ethics Code.22
Twelve counties have adopted ethics codes that are stricter than
the state’s ethics code.23 The focus of the stricter codes and
ordinances tends to be in the area of voting conflicts, gifts, and
financial disclosures.24
 Generally, county ethics boards come first and fold into their
coverage participating municipalities. Tallahassee did not follow
that pattern––there is no county ethics board covering or
addressing Leon County where Tallahassee is located. So how did
Tallahassee’s rather unique structure come to pass? Part II of
this Article sets the scene and describes how citizen perception of
the ethical climate in Tallahassee came to a tipping point, which
led to the formation of an Ethics Advisory Panel. Part III
discusses the activities of the Ethics Advisory Panel and its
findings. Part IV sets forth how the City Commission responded
to the report. Part V relates to continued citizen engagement and


some of the problems with the structure of the Palm Beach County Commission created to
combat corruption in the City); OFFICE OF PROGRAM POLICY ANALYSIS & GOVERNMENT
ACCOUNTABILITY, PALM BEACH COUNTY COMMISSION ON ETHICS WAS CREATED USING
SEVERAL BEST PRACTICES; SOME PROCESSES COULD BE ENHANCED, REP. NO. 13–10, at 1
(Fla. 2013) (providing a review of the Palm Beach County Commission on Ethics, which
emerged out of recommendations from a May 2009 grand jury created to propose changes
to provide oversight, transparency, and accountability for county and municipal
government); Comm’n on Ethics E-Book, PALM BEACH CNTY. COMMISSION ON ETHICS,
www.palmbeachcountyethics.com/pdf/Ethics_eBook.pdf. (last visited Apr. 18, 2017)
(providing an overview of the Palm Beach County Commission ethics program).
 21. See, e.g., Selwyn Raab, Inspectors Seized in Wide Extortion from Restaurants, N.Y.
TIMES, Mar. 25, 1988, at A1 (reporting that “[t]wenty-eight . . . health inspectors . . . were
charged . . . with extorting hundreds of thousands of dollars from restaurants by
threatening to close them or to cite them for sanitation violations”); see also Markowitz,
supra note 9, at 579–80 (citing different examples of unethical conduct by state officials
around the country).
 22. See FLA. STAT. § 112.326 (2016) (“Nothing in this act shall prohibit the governing
body of any political subdivision, . . . from imposing upon its own officers and employees
additional or more stringent standards of conduct and disclosure requirements than those
specified in this part . . . .”).
 23. Tough Choices: Florida Counties Bridge the Ethical Policy Gap, LEROY COLLINS
INST. 1, 2 (Nov. 2012), http://www.integrityflorida.org/wp-content/uploads/2013/03/
Integrity_Florida_and_LeRoy-Collins-Institute-Tough-Choices-Florida-Counties-Bridge-
the-Ethics-Policy-Gap-11.29.12.pdf. These counties include Broward, Clay, Duval,
Escambia, Indian River, Lake, Miami-Dade, Orange, Palm Beach, Sarasota, Seminole,
and St. Johns. Id.
 24. Id. at 2, 5, 9–10, 13–14.




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594 Stetson Law Review [Vol. 46

activism on ethics reform, which ultimately led to the formation
and activities of Tallahassee’s Independent Ethics Board. Part VI
serves to give an overview of the Independent Ethics Board’s
progress during its first eighteen months. Finally, Part VII covers
lessons learned and recommendations for other municipalities
seeking to implement or enhance their ethics compliance
programs.

 II. BACKDROP FOR CHANGE: CLIMATE AND
 CONTROVERSIAL VOTES

 Tallahassee internally audited its ethics program in 2008
and determined that “the City’s ethics program indicated that the
program includes many of the components recommended for a
strong ethics and compliance program.”25 The audit also found
that the program was working effectively to encourage ethical
behavior.26 Suggestions included:

 ● Centralizing resources and directing employees where to
 obtain ethics assistance;
 ● Asking employees during department meetings to share
 ethical dilemmas and how they handled them;
 ● Cultivating an atmosphere where violation reporting is
 encouraged and retaliation for reporting is discouraged;
 ● Improving identification and notification of those required
 to file ethics disclosure forms.27

 Of most concern was the lack of a central point of contact on
ethics matters. Employees generally relied on the City Attorney’s
office or supervisors to guide them.28 However, this structure had
arguably served the City well. From 2002–2012, eleven
complaints against City officials had been filed with the Florida



 25. Sam M. McCall, Audit of the City’s Ethics Program, Audit Report # 0912, CITY OF
TALLAHASSEE, intro page (Apr. 9, 2009), https://www.talgov.com/Uploads/Public/
Documents/auditing/pdf/0912-ethics.pdf.
 26. Id. at 1. The City of Tallahassee had a comprehensive ethics and character course
for employees. Employees are required to think beyond what the law requires by keeping
things like discretion, justice, alertness, tolerance, boldness, responsibility, cautiousness,
and wisdom.
 27. Id. at intro page.
 28. Id. at 37–38.




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Commission on Ethics.29 In no case was it found that a violation
was committed by an elected official. Additionally, no elected
official in Tallahassee has ever been arrested for a criminal act.30
Against this rather benign history, what tipped the balance?
 Mayor John Marks was first elected in 2003 and served three
terms––making him Tallahassee’s longest serving mayor.31 The
incumbent Democratic Mayor was challenged in 2010 by a
Republican opponent.32 Amid the economic downturn in
Tallahassee, the election produced acrimony and increased
scrutiny of elected officials.33 The Mayor won a third term in
August 2010.34 However, acrimony continued. City Hall critics
then focused on the past, 2007 and 2008, when Mayor Marks
voted four times on matters involving a company represented by
his law firm.35 Then, on September 15, 2010, Mayor Marks voted
to approve a $1.2 million federal grant involving the City and
grant partners Alliance for Digital Equality (“ADE”)36 and the Go
Beyond Foundation, while he was a paid member of ADE’s board
of advisors.37
 Some citizens were critical of these votes and actions.38 One
particularly vocal citizen, who unsuccessfully ran for City
Commission, habitually came to City Commission meetings and


 29. Ethics Advisory Panel, Regular Meeting Minutes, at 5 (May 30, 2013), available at
http://www.talgov.com/Uploads/Public/Documents/treasurer/pdf/eap/130530-eap-min.pdf.
 30. Id.
 31. City of Tallahassee, Celebration Planned to Say Farewell and Thank You to Mayor
John Marks, TALLAHASSEE DEMOCRAT (Oct. 18, 2014, 9:22 PM), http://www.tallahassee
.com/story/life/chronicle/2014/10/18/celebration-planned-say-farewell-thank-mayor-john-
marks/17527875/.
 32. Matthew Isbell, The Spectacular Self-Destruction of Steve Stewart, MCI MAPS
(Sep. 13, 2014), http://mcimaps.com/the-spectacular-self-destruction-of-steve-stewart/.
 33. Id.
 34. Liza Park, John Marks Captures Third Term as Tallahassee Mayor, WCTV (Aug.
25, 2010, 7:16 AM), http://www.wctv.tv/home/headlines/101446819.html?site=mobile.
 35. Jeff Burlew, Settlement Unlikely as Court Date Nears in Mayor Marks Case,
TALLAHASSEE DEMOCRAT: STAFF BLOGS (Sep. 12, 2012), http://blogs.tallahassee.com/
settlement-unlikely-as-mayor-marks-court-date-nears/; see also Lanetra Bennett, More
Ethics Complaints Filed Against Tallahassee Mayor, WCTV (May 24, 2011, 5:54 PM),
http://www.wctv.tv/home/headlines/Two_Ethics_Complaints_Filed_Against_Tallahassee_
Mayor_120677539.html.
 36. James Taylor, Tallahassee Mayor Verbally Attacks Citizen Who Filed Ethics
Charges, MEDIA TRACKERS (June 28, 2012), http://mediatrackers.org/florida/2012/06/28/
tallahassee-mayor-verbally-attacks-citizen-who-filed-ethics-charges.
 37. Burlew, supra note 35.
 38. Sean Rossman, City Commission Gets Rid of ‘Kill Switch,’ TALLAHASSEE
DEMOCRAT (July 3, 2014, 11:16 AM ET), http://www.tallahassee.com/story/news/local/
2014/07/02/city-commission-gets-rid-of-kill-switch/12116797/.




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596 Stetson Law Review [Vol. 46

was highly critical of the Mayor, other commissioners, and City
staff.39 The comments became so inflammatory a kill switch was
installed in the Commission chamber microphone used during
public comment, but after outcry about that practice, it was
quickly discontinued.40 This same citizen filed multiple
complaints with the Florida Commission on Ethics based upon
the Mayor’s votes in 2007, 2008, and 2010 to approve the City of
Tallahassee’s participation in the Federal Broadband Technology
Opportunity Program in partnership with the ADE, and his votes
on matters that inured to the gain of a company that was a client
of his law firm.41 The Florida Commission on Ethics ultimately
exonerated Mayor Marks on all complaints.42
 However, on September 19, 2012, in spite of the Mayor’s
exoneration and amid additional criticism from members of the
public, “the City Commission authorized the creation of a citizen’s
Ethics Advisory Panel to ‘examine the existing policies,
procedures and practices relating to ethics, financial disclosure
and transparency’ of the City of Tallahassee and where
appropriate to make recommendations for improvements.”43 “On
November 7, 2012, drawing from a pool of interested citizens who
were willing to serve, the City Commission appointed a nine
member Panel.”44 It was asked to prepare and submit a report to
the City Commission by April 1, 2013.45

 III. PANEL MEETINGS AND FINDINGS

 The Ethics Advisory Panel (“Panel”) conducted its first
meeting on November 8, 2012.46 The Panel then held eighteen


 39. Isbell, supra note 32.
 40. Rossman, supra note 38.
 41. See Final Order at background, disposition, In re John Marks (Jan. 25, 2013) (No.
13-004), http://www.ethics.state.fl.us/Documents/Orders/2011/11-053fo.html (explaining
how it was alleged that “Respondent voted to approve the City of Tallahassee’s
participation in the Federal Broadband Technology Opportunity Program in partnership
with the Alliance for Digital Equality, a business entity for which the Respondent served
in a compensated position, and that he voted on matters which inured to the gain of
Honeywell, a principal by which the Respondent was retained”).
 42. Id.
 43. Ethics Advisory Panel, Report of Recommendations, CITY OF TALLAHASSEE (July
10, 2013), available at https://www.talgov.com/uploads/public/documents/treasurer/pdf/
eap/eap-final-report.pdf [hereinafter 2013 Report of Recommendations].
 44. Id.
 45. Id. at 9.
 46. Id. at Exhibit A.




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2017] One City's Story of Ethics Reform 597

meetings in eight months, including two public hearings.47 The
first public hearing allowed citizens to suggest a direction for the
Panel.48 During this first public hearing, a citizen proposed
establishing a local city ethics commission, with members
appointed by various community organizations.49 “The Panel
discussed whether there was a need for an independent body to
respond to ethics complaints.”50 The Panel did not ultimately
recommend a city ethics commission.51 The second public hearing
was to gauge public reaction to the Panel’s proposals before the
recommendations were finalized.
 The Panel’s stated Mission was

 to review matters of ethics in view of best practices as they
 affect Elected Officials and City staff. The purpose of this
 review is to evaluate existing City policies and procedures,
 seeking to ensure that policies are adequate to serve their
 purpose, understood by those who are to abide by them, and
 accessible to the public. The Panel will recommend
 improvements to the City Commission for consideration and
 action addressing, but not limited to, a Code of Ethics,
 financial disclosure, and transparency.52

 The Chair and board members commented that the actions of
the Panel were not in any way related to allegations against the
Mayor, and the Panel instead focused on improving an already-
strong ethical foundation and culture within the City
government.53 The Ethics Advisory Panel Chair, Martha W.
Barnett, ultimately thanked the City Commission “for its
foresight in making ethics a continuing priority for the City of
Tallahassee. The Panel had the luxury of addressing these issues
during a period of stability, unlike some local governments that
have had to act in a time of crisis.”54



 47. Id. at 4.
 48. Id.
 49. Id. at 9.
 50. Id.
 51. Id. at 10.
 52. Id. at title page.
 53. City Ethics Board, Special Meeting Minutes, CITY OF TALLAHASSEE (Nov. 20, 2013),
available at http://www.talgov.com/Uploads/Public/Documents/ethics/131120.pdf
[hereinafter Nov. 20, 2013 Special Meeting].
 54. 2013 Report of Recommendations, supra note 43, at 2.




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598 Stetson Law Review [Vol. 46

 The Report examined the City’s Code of Ethics, oversight,
training, complaint reporting procedures, financial disclosures,
voting conflicts, procurement policy, lobbyist registration,
campaign finance, and revolving doors. The Panel reviewed
numerous documents55 and heard from numerous speakers.56 The
key preliminary recommendations of the Ethics Advisory Panel
included:

 ● Rename and promote an existing hotline as an Ethics and
 Fraud Hotline to make it easy for citizens and employees to
 share potential concerns[;]57
 ● Establish a “one-stop shop” of ethics information on the
 City’s website to promote additional transparency and easy
 access to information[;]58
 ● Maintain the existing financial disclosure requirements for
 employees, appointed officials and advisory boards[;]59
 ● Identify a way for elected leaders to disclose additional
 information beyond State-mandated disclosure, such as
 membership on boards, land ownership,60 and business
 relationships with current or prospective City vendors or
 employees[;]61
 ● Eliminate awarding points to vendors in the bid process for
 making charitable contributions[;]62
 ● Strengthen the City’s lobbyist registration ordinance,
 including fines and penalties for noncompliance[;]63
 ● Adopt an ordinance similar to (or with reference to) State
 law, but which requires Elected Officials to abstain from
 voting if, under a duty of ‘reasonable inquiry,’ the Official
 knew or should likely have known that the measure would
 inure to his or her special private gain or loss[; and]64


 55. Id. at Exhibit B.
 56. Speakers included the City Attorney; the City Manager; the Executive Director of
Integrity Florida; the City Auditor; Mr. Talbot “Sandy” D’Alemberte, President Emeritus
of Florida State University; and Mr. Phil Claypool, former Executive Director of the
Florida Commission on Ethics. Id. at Exhibit A.
 57. Ethics Panel Seeks Citizen Comments, CITY OF TALLAHASSEE (May 24, 2013) (on
file with Stetson Law Review).
 58. Id.
 59. Id.
 60. “It is not uncommon for allegations of conflicts to arise where a board member or
other public official lives in close proximity to the parcel or area subject to review or
action.” Salkin, supra note 14, at 765.
 61. Ethics Panel Seeks Citizen Comments, supra note 57.
 62. Id.
 63. Id.
 64. 2013 Report of Recommendations, supra note 43, at 13. More specifically, once an
elected official declares a conflict under the above requirement, the official shall not




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2017] One City's Story of Ethics Reform 599

 ● Prohibit elected and appointed officials from appearing
 before the City Commission as a paid employee or
 representative for two years after their term ends.65

 All recommendations of the Panel were accepted
unanimously, with the exception of the oversight authority.66 The
majority of the Panel members agreed, after reviewing emerging
best practices from other progressive communities, the trend was
the creation of an ethics officer.67 However, some members
believed an ethics officer should be an appointed official, while
others felt this officer needed to report to an individual or
individuals other than the City Commission.68 Some Panel
members noted that any ethics officer could not be totally
independent because the ethics officer would be a City
employee.69 However, the Chair pointed out that the Ethics
Officer’s independence would stem largely from transparency and
public involvement, and the public’s knowledge of what was
occurring within the government.70 It was envisioned that the
Ethics Officer could serve as an advisor to the elected officials
regarding ethical issues, augment the advice officials currently
received from the City Attorney, provide advice to employees,
establish standards, create a collection of case studies or
examples for training purposes, function as ombudsman to the
community, monitor the fraud/abuse hotline, provide
whistleblower protection, and conduct an annual ethics
assessment.71 The Panel was unanimous in its vote to establish


engage in discussion about the measure and leave the chambers until the item is
concluded. They would also continue to follow the statutory requirement that an elected
official with a voting conflict on the day of the vote must abstain from voting. It was also
suggested that a requirement that an elected official must declare a voting conflict and
abstain from voting due to a business relationship which existed at any time when said
relationship personally involved the elected official and specifically involved the item
under consideration. If there is no special private gain or loss and the elected official was
not personally involved in the item under consideration, but the official had a past
business relationship with a person or company identified in an agenda item within the
past three years, the elected official may participate and vote, but the relationship shall be
disclosed at the time the measure is presented and prior to any vote being cast. Id.
 65. Ethics Panel Seeks Citizen Comments, supra note 57.
 66. 2013 Report of Recommendations, supra note 43, at 4.
 67. Id. at 8–9.
 68. Id.
 69. Id. at 4–5.
 70. Ethics Advisory Panel, Regular Meeting Minutes, CITY OF TALLAHASSEE 8 (Apr. 18,
2013), http://www.talgov.com/Uploads/Public/Documents/ethics/130418.pdf.
 71. Id.




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600 Stetson Law Review [Vol. 46

an ethics officer and stressed that it was up to the will of the City
Commission to determine the specifics of the position.72 Many
citizens appearing at meetings wanted an independent ethics
officer reporting to a board.73 However, the Panel did not
recommend an independent board.74 “The Panel officially adopted
this Report and Recommendations to the City Commission on
June 26, 2013.”75

 IV. COMMISSION ACTION

 The City Commission accepted the final Panel report on July
10, 2013. Subsequently, two separate City Commission
workshops were held. The first workshop occurred on November
20, 2013, and over half of the Panel’s recommendations were
approved and adopted. However, at the outset, Mayor Marks
indicated that the Panel’s process was “‘a solution in search of a
problem,’” and that none of the allegations against him were
substantiated.76 In contrast, another Commissioner indicated
that the Panel’s purpose was the pursuit of the best local
government operation possible, and not aimed at any particular
individual.77
 The City Commission unanimously accepted the
recommendation to adopt a formal, centralized, and
comprehensive Code of Ethics that is easily accessible to citizens
and includes reference to state law, city code, and policy
provisions. They also agreed to incorporate a preamble, which
states:



 72. Id. at 5.
 73. Ethics Advisory Panel, Town Hall Meeting Minutes, CITY OF TALLAHASSEE (Jan.
10, 2013), http://www.talgov.com/uploads/public/documents/treasurer/pdf/eap/130110-eap-
min.pdf.
 74. 2013 Report of Recommendations, supra note 43, at 4.
 75. Id.
 76. Nov. 20, 2013 Special Meeting, supra note 53, at 7. Mayor Marks was not alone in
his assessment. Member of the Ethics Advisory Panel and pastor of First Presbyterian
Church in Tallahassee, Brant Copeland, later said that the Panel was “impressed with the
ethics in city government, by the amount of training in ethics, by the level of ethics found
throughout city government . . . . [They] found no smoking gun. There was no ethics
problem in city government.” Gerald Ensley, Ethics Proposal is Wrong and Unnecessary,
TALLAHASSEE DEMOCRAT (Oct. 24, 2014, 12:30 PM ET), http://www.tallahassee.com/story/
opinion/columnists/ensley/2014/10/24/gerald-ensley-ethics-proposal-wrong-unnecessary/
17833971/ (internal quotation marks omitted).
 77. Nov. 20, 2013 Special Meeting, supra note 53, at 19.




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2017] One City's Story of Ethics Reform 601

 Whereas the citizens of Tallahassee have determined that
 they will be best served by adopting a municipal form of local
 government; and whereas the citizens have vested in the
 public officials and employees of that municipal government
 the responsibility and trust for operating that government for
 the benefit of its citizens; and whereas those citizens are
 entitled to a government that is open, ethical, responsive and
 accountable to the highest degree possible; now, therefore, the
 following ethics code is adopted[.]78

 The Commission also unanimously agreed to require all
officials and employees to swear an Oath of Office, as follows:

 I, ________, a citizen of the State of Florida and of the United
 States of America, and being employed by or an officer of and
 a recipient of public funds as such employee or officer, do
 hereby solemnly swear or affirm that I will support the
 Constitution of the United States and of the State of Florida.79

 I further solemnly swear or affirm that I have a commitment
 to the public trust, the highest standards of professionalism
 and ethics including a commitment to the constant appearance
 of propriety, always putting public trust first and never
 allowing personal benefit to affect my decisions and service as
 a public servant.80

 Other recommendations unanimously adopted included:

 ● Crea[tion of] a handbook to help citizens and employees
 understand the City’s Code of Ethics . . . [;]81
 ● Expan[sion of] the . . . Fraud Hotline to include Ethics . . .
 [;]82
 ● Repeal [of] the Charitable Contribution preference points
 program in relation to the competitive bidding process[;]83
 ● Inclu[sion] of standardized “boilerplate” language in City
 contracts to put vendors on notice that they must adhere to
 the City’s ethics policies[;]84




  78. Id. at 5.
  79. FLA. STAT. § 876.05(1) (2016).
  80. Nov. 20, 2013 Special Meeting, supra note 53, at 5.
  81. Id. (emphasis added).
  82. Id.
  83. Id. at 6.
  84. Id.




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602 Stetson Law Review [Vol. 46

 ● Prohibit[ion of] future Appointed Officials (in addition to
 Elected Officials) from appearing before the City Commission
 for compensation for a [two]-year period after the official
 leaves the employ of the City;85
 ● [Expansion of requirement to disclose job offers extended by
 City vendors to Elected Officials as well as for Appointed
 Officials and selected City employees;]86
 ● Require the Elected Officials to participate in an initial
 comprehensive ethics training course within [sixty] days of
 taking office, with refresher ethics training conducted on an
 annual basis and documentation of attendance and completion
 of all courses in the Official’s personnel file[;]87
 ● Incorporate training on the Voting Conflicts and the
 “reasonable inquiry” expectation into the Ethics Training
 Program for Elected Officials[;]88
 ● Provide training to Elected Officials and their Aides
 relative to the Florida gift ban law and gift reporting
 requirements[;]89
 ● Incorporate training on Florida election laws relating to
 campaign contributions, prohibitions on campaigning while
 performing official duties, and prohibitions on collecting
 campaign contributions within government buildings[;]90
 ● Continue with the current practice and expand and
 enhance the recruitment, selection, initial orientation,
 appointment, and promotional procedures and processes to
 ensure that only the most ethical individuals are employed,
 appointed, and/or promoted items.91

 Items requiring further Commission discussion related to the
role and reporting structure for the Ethics Official, enhanced
disclosure for elected officials, reasonable inquiry prior to voting,
City lobbyist reporting requirements, adopting fines for
violations, and evaluation of ethics training.92
 The second workshop was held on March 12, 2014, when
these additional provisions were discussed.93 The Commission

 85. Id.
 86. Id.
 87. Id.
 88. Id.
 89. Id.
 90. Id.
 91. Id.
 92. Id. at 6, 15, 19.
 93. City Ethics Board, Special Meeting Minutes, CITY OF TALLAHASSEE 2, 5 (Mar. 12,
2014), available at http://www.talgov.com/Uploads/Public/Documents/ethics/140312.pdf
[hereinafter Mar. 12, 2014 Minutes].




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2017] One City's Story of Ethics Reform 603

discussed how the Ethics Officer would take office––either (1) the
Ethics Officer would be an appointed official, or (2) the Ethics
Officer would be jointly interviewed and hired by the City Auditor
and City Attorney, and housed in the City Auditor’s Office.94
Ultimately, the Commission decided that the Ethics Officer would
jointly report to the City Auditor and City Attorney.
 The Commission then voted to adopt recommendations to
create an appointed five-member Citizens’ Advisory Committee
on Ethics to monitor the implementation of the Panel’s
recommendations and to present a report to the City Commission
after one year.95
 Next, the Commission took note of the Ethics Code provision
in section 112.3143(3)(a), Florida Statutes, which states that:

 No county, municipal, or other local public officer shall vote in
 an official capacity upon any measure which would inure to
 his or her special private gain or loss; which he or she knows
 would inure to the special private gain or loss of any principal
 by whom he or she is retained or to the parent organization or
 subsidiary of a corporate principal by which he or she is
 retained . . . .96

 The Commission then adopted an ordinance “which requires
Elected Officials to abstain from voting if, under a duty of
‘reasonable inquiry,’ the Official knew or should likely have
known that the measure would inure to his or her special private
gain or loss.”97 Once a conflict is declared, the Official “shall not
engage in discussion about the measure, and must leave the
chambers until the item is concluded.”98 Whereas state ethics law
only examines the day a particular vote was cast to determine if a
conflict existed on that particular day, the Commission accepted
the Panel’s recommendation requiring that officials exercise due
diligence and make additional disclosures.99
 Further, the Commission mandated lobbyist registration and
enacted requirements for lobbyists to disclose clients.100 A process


  94. Nov. 20, 2013 Special Meeting, supra note 53, at 21.
  95. Id. at 8–9.
  96. FLA. STAT. § 112.3143(3)(a) (2016).
  97. Mar. 12, 2014 Minutes, supra note 93, at 3.
  98. 2013 Report of Recommendations, supra note 43, at 5.
  99. Id. at 15–16.
 100. Id. at 14.




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604 Stetson Law Review [Vol. 46

was also put in place for barring lobbyists and fining
noncompliant lobbyists.101 The Commission also adopted
enhanced disclosure for elected officials, including business
relationships with City vendors, business relationships with City
employees, membership on corporate boards, membership on not-
for-profit boards, and any land ownership.102 The Commission
then passed a comprehensive ethics ordinance reflective of those
votes.103
 The City widely advertised to fill the position of Ethics
Officer, who would report to the City Auditor and City Attorney—
over 150 applicants applied.104 I was jointly interviewed by the
City Auditor and City Attorney. The second-round interview was
with the City Auditor and City Attorney, joined by the City
Manager and Treasurer Clerk. I started working on October 1,
2014.105 However, these actions were unsatisfactory to some
community members. Many had wanted the Ethics Officer to be
an appointed official, while others wanted an Independent Ethics
Officer reporting to a Board.106 This dissatisfaction led to further
citizen action.

 V. CITIZEN ACTION

 An amendment to the City Charter was presented and
promoted by Citizens for Ethics Reform and a national
organization, Represent Us.107 The Referendum’s purpose was to


  101. Id. at 15.
  102. Id. at 5; see also City of Tallahassee, Financial Disclosure For Elected Officials
(FORM EB1), (June 2015), available at http://www.talgov.com/uploads/public/documents/
treasurer/pdf/ethics/eb-financial-disclosure-elected-officials.pdf.
  103. CITY OF TALLAHASSEE, FLA., ORDINANCE NO. 14-0-44AA (Sept. 22, 2014).
  104. Jeff Burlew, City Ethics Post Attracts 150-Plus Applicants, TALLAHASSEE
DEMOCRAT (Sept. 13, 2014, 11:39 AM ET), http://www.tallahassee.com/story/news/politics/
2014/09/13/tallahassee-searches-ethics-officer/15578639/; see also Job Description: Ethics
Officer, City of Tallahassee, available at http://www.talgov.com/Uploads/Public/
Documents/hr/hr/specs/791.pdf (last updated Oct. 1, 2015) (describing the functions,
duties, and qualifications necessary to become the Ethics Officer).
  105. TaMaryn Waters, Julie Meadows-Keefe Hired as New Ethics Officer, TALLAHASSEE
DEMOCRAT (Sept. 30, 2014, 11:34 PM ET), http://www.tallahassee.com/story/news/local/
2014/09/30/julie-meadows-keefe-hired-new-ethics-officer/16516757/.
  106. See Jeff Burlew, Ethics Board Facing Criticism from Amendment Backers,
TALLAHASSEE DEMOCRAT (July 25, 2015, 1:26 PM ET), http://www.tallahassee.com/story/
news/politics/2015/07/24/ethics-board-facing-criticism-amendment-backers/30628291/.
  107. Sam Shanky, Anti-corruption Movement Scores Major Victories at the Polls,
BULLETIN.REPRESENT.US (Nov. 5 2014), http://bulletin.represent.us/anti-corruption-
movement-scores-major-victory-polls/.




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2017] One City's Story of Ethics Reform 605

amend the City Charter on ethics and campaign finance matters,
including a provision for partial public funding of elections.108 The
Charter Amendment Referendum read as follows:

 Shall the Charter of the City of Tallahassee be amended to
 establish an ethics and anti-corruption policy; require the
 enactment of an ethics code, establishment of an independent
 ethics board with broad powers, creation of an ethics office and
 officer; limit campaign contributions to City Commissioners to
 $250 per contributor per election and establish a citizen
 campaign finance program with refunds from city funds for
 contributions and provide for severability.109

 The Charter Amendment required:

 ● “Enact[ment of] an ethics . . . code with jurisdiction over
 the officers and employees of the City of Tallahassee,
 whether elected or appointed, paid or unpaid, and over the
 members, officers and employees of any boards,
 commissions, or committees thereof. The ethics code may,
 as allowed by law, supplement state ethics laws”;110
 ● Creation of an ethics Board with appointments by “the
 City Commission, the Chief Judge for the Second Judicial
 Circuit, the State Attorney for the Second Judicial Circuit,
 the President of Florida State University and the
 President of Florida A&M University. Two Board
 members shall be appointed by the Ethics Board.”111 The
 Board would, in part, make recommendations to the City
 Commission on various matters, including proposed ethics
 ordinances and employ an Ethics Officer;112
 ● “[E]stablishment of a citywide Ethics Office . . . reporting
 to the independent Ethics Board” with sufficient City
 Commission funding to function “at a level sufficient to
 discharge the Office’s responsibilities”;113



  108. Referendum Amending City of Tallahassee  Charter, available at
https://www.talgov.com/Uploads/Public/Documents/ethics/pdf/referendum_150210.pdf (last
visited Apr. 18, 2017) [hereinafter Referendum].
  109. Id.
  110. Id. at Section 2a.
  111. Id. at Section 2b.
  112. Id.
  113. Id. at Section 3.




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606 Stetson Law Review [Vol. 46

 ● Reduction of “campaign contributions from any
 contributor, including a political committee . . . [to]
 $250”;114 and
 ● Establishment of a Campaign contribution refund
 program to refund city electors a maximum of $25 for
 contributions to city candidates.115

 Some believed that the ethics proposal was going too far.116
The most significant bone of contention was the proposal to
establish the campaign contribution refund program. The local
organizers of the initiative, Citizens for Ethics Reform, partnered
with United Republic and Represent Us, two Massachusetts-
based organizations committed to undoing Citizens United and
instituting campaign finance reform.117 United Republic
contributed over $120,000 to assist with signature collection.118
 Nine thousand signatures were required to place the
measure on the ballot. Citizens for Ethics Reform, through a
petition drive, was able to collect more than twenty thousand
signatures.119 However, the City believed that the ballot title and
summary did not fairly inform voters of its chief purpose and was
misleading. Of particular concern was that the proposal for the
$25 campaign contribution rebate program did not fit within the
single subject of ethics reform.120 The City challenge made it
uncertain whether the measure would make the September 5,
2014, deadline for placement on the ballot. An expedited hearing
was conducted, and the Circuit Judge decided that the measure



  114. Id. at Section 4.
  115. Ensley, supra note 76.
  116. Id.
  117. Id. See Represent Us, The Truth About Citizens United, REPRESENT US,
https://act.represent.us/sign/Citizens-United/ (last visited Apr. 18, 2017) (describing
Represent Us’ commitment to overruling Citizens United and ending political corruption
on a broad scale).
  118. Jeff Burlew, City Ethics Amendment Passes by Wide Margin, TALLAHASSEE
DEMOCRAT (Nov. 5, 2014, 8:12 AM ET), http://www.tallahassee.com/story/news/politics/
2014/11/04/voters-decide-city-ethics-proposal/18459015/.
  119. Jeff Burlew, Ethics Proposal Gets Enough Signatures for Ballot, TALLAHASSEE
DEMOCRAT (Aug. 5, 2014, 2:47 PM ET), http://www.tallahassee.com/story/news/local/2014/
08/05/ethics-proposal-gets-enough-signatures-for-ballot/13625497/.
  120. TaMaryn Waters, Ethics Initiative Proponents Seek Quick Resolution to City
Challenge, TALLAHASSEE DEMOCRAT (Aug. 20, 2014, 10:11 PM ET), http://www
.tallahassee.com/story/news/politics/2014/08/20/ethics-initiative-proponents-seek-quick-
resolution-to-city-challenge/14370451/.




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2017] One City's Story of Ethics Reform 607

should be placed on the ballot because the language was not
confusing, deceptive, inflammatory, or misleading.121
 The Commission decided not to instruct the City Attorney to
appeal the ruling so that the measure could go before voters.122
The Charter Amendment passed on November 4, 2014, with
sixty-seven percent of the vote. Represent Us touted the victory in
a marketing video designed to instruct and motivate other
communities to enact similar measures.123

 VI. A NEW BOARD IS FORMED

 The Charter amendment requires that the City of
Tallahassee’s Independent Ethics Board consist of the following
appointees:

 ● One appointed by the City Commission;
 ● One appointed by the State Attorney;
 ● One appointed by Florida State University;
 ● One appointed by Florida A&M University;
 ● Two board-appointed members; and
 ● One member Appointed by Chief Judge (unfilled).124


  121. Jeff Burlew, City Charter Amendments Will Go on November Ballots,
TALLAHASSEE DEMOCRAT (Aug. 29, 2014, 11:13 PM ET), http://www.tallahassee.com/story/
news/politics/2014/08/29/city-charter-amendment-will-go-november-ballots/14839761/.
  122. Id.
  123. First Anti-Corruption Act in US History Passes 1:13–3:30 (Represent Us video Nov.
6, 2014), https://www.youtube.com/watch?v=LhEFehRWApM.
  124. Members of the first full board included City appointee, Lila Jaber, who served as
first Chair; FAMU appointee, Funmi Ojetayo; FSU appointee, Richard Herring; State
Attorney appointee, Cecil Davis, Jr.; Thomas J. Friedman, at-large; and Renee McNeil, at-
large. Jeff Burlew, City Ethics Board Meets for First Time, TALLAHASSEE DEMOCRAT (Feb.
10, 2015, 4:49 PM ET), http://www.tallahassee.com/story/news/2015/02/10/city-ethics-
board-meets-for-first-time/23181609/. Chief Judge Francis declined to make an
appointment after reviewing Florida Supreme Court Judicial Ethics Advisory Committee
Opinion 2009-14. See Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD 2 (Mar.
12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-
board-agenda-150312.pdf (showing an email from Lew Shelley to Jim Cooke); see also
Florida Judicial Ethics Advisory Committee, Formal Op. 2009-14 (Aug. 31, 2009),
available at http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/
2009-14.html. The Board wrote to the Chief Judge succeeding Judge Francis, Judge
Sjostrom, asking if he would be willing to make an appointment. City Ethics Board,
Regular Meeting Minutes, CITY OF TALLAHASSEE 9 (Aug. 20, 2015) available at
http://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150820
.pdf [hereinafter Aug. 20, 2015 Minutes]. However, he declined. Letter from Johnathan
Sjostrom to Lila Jaber, Ethics Board Appointment (Sep. 3, 2015), available at
http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-skm-150916.pdf. The Board
will most likely not ask again based on the legal opinion from Board counsel. Letter from




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608 Stetson Law Review [Vol. 46

 The first meeting occurred on February 10, 2015, with the
City Commission, Florida State University, Florida A&M
University, and the State Attorney’s Office appointees.125 Both
Chief Circuit Judges that have presided during the Board’s
existence have declined to make appointments based on a Florida
Supreme Court Judicial Ethics Advisory Committee opinion.126
The Board received various briefings and instructed the City’s
assistance in securing two additional members.127 At their second
meeting on March 12, 2015, those members appointed two
additional citizen members drawn from a pool of qualified
applicants.128 The first full board meeting occurred on March 23,
2015,129 and the Chair and Vice Chair were elected.130 At the first
several meetings, it was necessary for City staff to be present and

Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent Ethics Bd., Re:
Tallahassee Ethics Opinion 2015-3 (Sept. 24, 2015), http://www.talgov.com/uploads/public/
documents/ethics/pdf/eb-addmem-151014.pdf. See also Sean Rossman, Ethics Board
Completes Year of Building: Panel Labored Over Authority, Bylaws, Complaints, Penalties,
TALLAHASSEE DEMOCRAT, Jan. 20, 2016, 1A. Board members file form 1 and form 9 if gifts
are received. See City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE
ETHICS BOARD 2 (Feb. 10, 2015), available at https://www.talgov.com/uploads/public/
documents/ethics/pdf/ethics-board-minutes-150210.pdf [hereinafter Feb. 10, 2015
Minutes]. Currently, Richard Herring serves as Chair and Ms. Sunny Phillips has
replaced Ms. Jaber as the City Commission appointee. City Ethics Board, Regular Meeting
Minutes, CITY OF TALLAHASSEE ETHICS BOARD 1, 4 (Jan. 19, 2016), available at
https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-minutes-160119
.pdf [hereinafter Jan. 19, 2016 Minutes].
  125. Burlew, supra note 124; see also February 10, 2015 Minutes, supra note 124, at 1
(“The City of Tallahassee Ethics Board held its first regular session on February 10, 2015
in the City Hall Commission Chambers. Present were Board members Davis, Jaber,
Herring, and Ojetayo.”).
  126. Supra note 124; see also Florida Judicial Ethics Advisory Committee, supra note
124, at 2 (“For the foregoing reasons, this Committee recommends that the chief judge
respectfully decline to appoint members of the Board of Ethics.”). See also Rossman, supra
note 124, at 1A, 6A.
  127. See February 10, 2015 Minutes, supra note 124, at 1 (noting that the Board
requested the Treasurer-Clerk to solicit applications for the remaining seats on the
Board).
  128. See City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS
BOARD 1 (Mar. 12, 2015), available at https://www.talgov.com/uploads/public/documents/
ethics/pdf/ethics-board-minutes-150312.pdf (noting that applicant qualification consists of
being a registered City Tallahassee elector, with appropriate subject matter expertise,
none of whom may be an officer or employee of local government); Referendum, supra note
108, at Section 2b (“There is hereby created an independent, appointed, ongoing citizens
Ethics Board of seven members, whose membership shall consist of registered City of
Tallahassee electors who have appropriate subject matter expertise none of whom may be
an officer or employee of local government.”).
  129. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
1 (March 23, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/
pdf/ethics-board-minutes-150323.pdf.
  130. Id.




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2017] One City's Story of Ethics Reform 609

to assist the board in becoming established, staffed, supported,
and functional;131 however, the public clamored for the Board to
quickly demonstrate independence.132 As each meeting occurred,
City staff became less visible. Currently, staff is invited to
meetings to provide education to Board members about various
City functions, and they may choose to attend because the
meetings are public.133
 One of the Board’s first tasks was to adopt a mission
statement, which states: “To promote the actual and perceived
integrity of our city government and to prevent unethical conduct
before it occurs.”134 The mission statement recognized that the
overall aim of the Ethics Board was to improve both the
perception and reality of integrity in local government and to
encourage public participation.135 Another urgent task for the
Board was to establish an operational budget.136 The Charter
Amendment requires that the City “shall be funded by the City
Commission within its discretionary budgetary authority at a
level sufficient to discharge the Board’s responsibilities.”137

  131. See Feb. 10, 2015 Minutes, supra note 124, at 2.
  132. Rossman, supra note 124, at 6A (noting that at the first Board meeting, City
Attorney Lew Shelley advised the board that they were independent and that they should
“feel free at any point in time, if it’s the will of the majority, to ignore what any of us say”).
  133. See, e.g., Procurement Overview: Department of Management and Administration,
CITY OF TALLAHASSEE, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-
151112-11d-presentation.pdf (last visited Apr. 18, 2017) (providing a presentation on
“Procurement Overview”).
  134. Independent Ethics Board, Bylaws of the City of Tallahassee 1 (Jan. 19, 2016),
http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-bylaws-ethics-
board-proposed-technical-amends.pdf. Indeed, there is additional support for the
proposition that the purpose of any ethics board is to promote the reality and the
perception of integrity in government. See Governmental Ethics Laws, supra note 14, at
186 (“[E]nforcement actions and fines are not an ethics commission’s successes; they are
its failures.”).
  135. Governmental Ethics Laws, supra note 14, at 119.
  136. See, e.g., Funds Available FY15, CITY OF TALLAHASSEE ETHICS OFFICE (Feb. 28,
2015), http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-budget-
150219.pdf (delineating the various expenses and budget considerations the board has
encountered during 2015).
  137. Referendum, supra note 108, at Section 2b. See also Feb. 10, 2015 Minutes, supra
note 124, at 2–3 (discussing how the allocation of certain costs is contingent upon the
Board’s decision to hire employees or independent contractors); Updated Budget, CITY OF
TALLAHASSEE ETHICS BOARD (Mar. 31, 2015), http://www.talgov.com/uploads/public/
documents/treasurer/pdf/ethics/ethics-board-budget16.pdf (outlining projected expenses
for the 2016 fiscal year). Furthermore, it became necessary to ask the City Commission for
a supplemental appropriation for fiscal year 2016. Supplemental Appropriation for
Independent Ethics Board, CITY OF TALLAHASSEE INDEPENDENT ETHICS OFFICE (Feb. 24,
2016), http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-draft-cc-
suplmt-appr-req-011416.pdf; see also Jan. 19, 2016 Minutes, supra note 124, at 3–4




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610 Stetson Law Review [Vol. 46

 Further, the Charter Amendment requires the Independent
Ethics Board to undertake the following tasks:

 ● Review and develop a City Ethics Code;138
 ● Adopt bylaws and due process procedures;139
 ● Manage existing ethics and fraud hotline;140
 ● Manage and coordinate training;141
 ● Recommend resolutions, ordinances, or charter
 amendments;142
 ● Investigate complaints and levy civil penalties;143
 ● Employ staff and supervises the ethics officer;144
 ● Administer campaign contribution refund program;145
 ● Ensure independence and impartiality;146 and
 ● Provide for the maximum practicable input from citizens
 and community organizations.147

 The Board’s attention to these tasks will now be examined in
a bit more detail. Functions that are similar will be grouped
together.


(noting that the Board unanimously agreed to request a supplemental appropriation from
the City Commission covering various expenditures such as startup costs and legal fees).
Annual costs for the Board were initially approximately $137,000 annually. A budget
request for approximately $344,000 has been submitted for FY 2017–2018. The increase is
largely due to having to retain outside counsel and to budget for investigators and court
reporters that the Board may or may not need depending on the number of complaints
received.
 138. Referendum, supra note 108, at Section 2a.
 139. Id. at Section 2b.
 140. Id.
 141. The Ethics Officer trained the City Commission and executive team in January
2015 and January 2016, partially based upon the requirement in section 112.3142(2)(b).
See Mark Davies, Enacting a Local Ethics Law–Part III: Administration, 22 MUN. LAW.
11, 12 (2008) (“[O]ne municipal ethics ordinance subjects high-level officials to a $500 fine
if, within 120 days of assuming their position and every four years thereafter, they fail to
attend an ethics education seminar offered by the ethics board.”).
 142. Referendum, supra note 108, at Section 2b.
 143. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
(Nov. 12, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/
eb-151215-Minutes.111215.pdf [hereinafter Nov. 12, 2015 Minutes]; Draft of Agenda Item
Details, CITY OF TALLAHASSEE ETHICS BOARD (Mar. 23, 2016), http://www.talgov.com/
uploads/public/documents/ethics/pdf/eb-160315-penalties-(2).pdf.
 144. Id.
 145. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
2–3 (July 13, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/
pdf/ethics-board-minutes-150713.pdf [hereinafter July 13, 2015 Minutes].
 146. Referendum, supra note 108, at Section 2b.
 147. Id.




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2017] One City's Story of Ethics Reform 611

 A. Review and Development of City Ethics Code and
 Recommendations of Resolutions, Ordinances, and Charter
 Amendments

 In 2015, the City passed an Ethics Ordinance in response to
the Panel’s report. The Board carefully reviewed and discussed
those provisions.148 Subsequently, an ordinance was passed to
establish the Independent Ethics Board and set Board terms.149
The Board counsel later made recommendations for revisions to
the City Ethics Code, which the Board advanced to the City
Commission for passage.150 In May 2016, Board counsel opined
that the Charter Amendment does not allow the Board to exercise
concurrent jurisdiction with the Florida Commission on Ethics
and the Board’s sole jurisdiction is for violations of the City’s
Ethics Code.151 This has increased the Board’s sense of urgency to
recommend additional provisions for passage by the City
Commission.

 B. Adoption of Bylaws and Due Process Procedures

 The Board was deliberative as it “slogged” through the
adoption of bylaws and procedures such that one reporter
described it as “laboring.”152 However, preliminary bylaws and

  148. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
(May 21, 2015), available at https://talgov.com/uploads/public/documents/ethics/pdf/ethics-
board-minutes-150521.pdf [hereinafter May 21, 2015 Minutes].
  149. TALLAHASSEE, FLA., ORDINANCE § 2-13 (2015).
  150. Letter from Gerald B. Curington to Lila Jaber, Chair, Tallahassee Independent
Ethics Bd., Recommendations to City Commission Regarding Ethics Board 2–3 (Aug. 6,
2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/
eb-recommendations-150820.pdf; see also Memorandum from Julie Meadows-Keefe,
Independent Ethics Officer, to Lewis Shelley, City Attorney, Ethics Board
Recommendations for Modifications to City Ethics Ordinances (Aug. 17, 2015), available at
http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-rec-ec-signed-memo-150916
.pdf.
  151. May 21, 2015 Minutes, supra note 148.
  152. Rossman, supra note 124, at 1A; see also, e.g., City Ethics Board, Regular Meeting
Minutes, CITY OF TALLAHASSEE ETHICS BOARD (June 4, 2015), available at
https://www.talgov.com/uploads/public/documents/ethics/pdf/ethics-board-minutes-150604
.pdf (“After completing a page-by-page review of the proposed bylaws, Ms. Jaber stated
that she understood the Board’s concerns, and that she, along with Ethics Officer
Meadows-Keefe, would make the requested changes to the proposed bylaws.”); Nov. 12,
2015 Minutes, supra note 143 (“A motion was made by Mr. Herring and seconded by Mr.
Ojetayo that the Bylaws be amended as presented.”); Ethics Board Agenda, CITY OF
TALLAHASSEE ETHICS BOARD (April 6, 2015), https://www.talgov.com/Uploads/Public/
Documents/ethics/pdf/apr6-agenda.pdf (stating that there was a “[d]iscussion of draft
Bylaws”); May 21, 2015 Minutes, supra note 148 (“City Ethics Officer Meadows-Keefe




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612 Stetson Law Review [Vol. 46

processes were stood up in short order so that the Board had a
structure in place for governance.153 Later, when the Board
counsel was hired, he was tasked with examining the existing
bylaws and making recommendations that were discussed and in
most cases adopted.154 A hallmark of this Board is that because it
is relatively new, it is a continuous work-in-progress and seeks to
consistently improve and adopt the best practices.155 Additionally,
due process procedures were examined in 2016 through a
Committee process to ensure the fairest process for both the
citizens and officials.156 There is also an interest in moving
complaints expeditiously through the process. Therefore, the
bylaws allow for probable cause committees to process complaints
between meetings and for contested matters to be adjudicated at
the Department of Administrative Hearings (“DOAH”).

 C. Management and Coordination of Ethics Training

 Noting that ethics commissions in other local governments
have been criticized for insufficiently training board members,157
Tallahassee’s Independent Ethics Board has first emphasized
educating itself.158 The Board receives annual ethics training each
April.159 Current Board Chair, Richard Herring, has also
instituted “Ethics Moments” at the beginning of each Board
meeting, where recent decisions by the Florida Ethics


reported that the proposed draft bylaws provided to the Board were patterned after
Robert’s Rules of Order . . . .”); Draft Bylaws of the City of Tallahassee Independent Ethics
Board, CITY OF TALLAHASSEE ETHICS BOARD, http://www.talgov.com/uploads/public/
documents/treasurer/pdf/ethics/ethics-board-bylaws-draft.pdf (last visited Apr. 18, 2017).
  153. See, e.g., May 21, 2015 Minutes, supra note 148, at 1–2 (addressing each article
and section of the proposed bylaws and agreeing to establish a hearing process).
  154. See Feb. 10, 2015 Minutes, supra note 124, at 1 (discussing City Attorney Shelly’s
briefing on the City Commission’s enactment of the Ethics Advisory Panel’s
recommendations).
  155. See Rossman, supra note 124, at 1A (discussing the Board’s development
throughout its first year of existence).
  156. May 21, 2015 Minutes, supra note 148, at 2 (discussing the Board’s decision to
establish a hearing process).
  157. Office of Program Policy Analysis and Government Accountability, Palm Beach
County Commission On Ethics Was Created Using Several Best Practices; Some Practices
Could Be Enhanced, Report No. 13-10, at 8–9 (Oct. 2013).
  158. E.g., Julie Meadows-Keefe, PowerPoint on Government Ethics, CITY OF
TALLAHASSEE ETHICS OFFICE (May 21, 2015), available at http://www.talgov.com/uploads/
public/documents/treasurer/pdf/ethics/pp.pdf; see also May 21, 2015 Minutes, supra note
148, at 4 (proposing to obtain the services of independent counsel to advise the Board on
various matters).
  159. Meadows-Keefe, supra note 158.




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2017] One City's Story of Ethics Reform 613

Commission or relevant items of interest and applicability are
brought to the Board and discussed to enhance Board
understanding of ethics issues.160
 Even before passage of the Charter Amendment, the Ethics
Officer’s role was envisioned to be the central point of contact for
ethics matters within the City. I provided annual ethics training
to the City Commission, staff, and executive management in
January 2015161 and January 2016.162 I have also personally
provided ethics education to city advisory boards and councils,
and provided general staff training.
 Additionally, from Board inception, outside speakers have
come to educate the Board about the Sunshine and Public
Meeting Laws, the role of the Florida Commission on Ethics, and
the role of the Florida Elections Commission.163 City staff has also
regularly made presentations to the Board, so that members may
understand such functions as procurement, communications, and
City management and organization.164 The Board also reviewed
the ethics training provided to all City employees and heard from
the staff member who organizes general employee ethics
education.165




  160. See, e.g., Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (July 19,
2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/
$file/Ethics%20Board%20Agenda%20July%202016.pdf (reserving time at the beginning of
the meeting for the “Ethics Moment”).
  161. See Feb. 10, 2015 Minutes, supra note 124, at 3 (noting that Ms. Meadows-Keefe
assumed the responsibility of providing ethics training).
  162. Rossman, supra note 124, at 6A.
  163. See Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Apr. 19, 2016),
available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGAP42A1F8/$file/
Agenda.pdf (Hon. Simone Marstiller); Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS
BOARD (Nov. 12, 2015), https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-
151112-agenda.pdf (Pat Gleason); City Ethics Board, Regular Meeting Minutes, CITY OF
TALLAHASSEE ETHICS BOARD (Oct. 14, 2015), available at https://www.talgov.com/uploads/
public/documents/ethics/pdf/eb-151112-02-minutes.pdf [hereinafter Oct. 14, 2015 Minutes]
(Elections Commission Director); Aug. 20, 2015 Minutes, supra note 124 (Ethics
Commission staff).
  164. Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Feb. 16, 2016),
https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-agenda.pdf.
  165. E.g., Ethics for a Modern Workforce, CITY OF TALLAHASSEE DEP’T OF EQUITY &
WORKFORCE DEV. 3–4, http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-
151215-Ethics%20Training%20Presentation.pdf (last visited Apr. 18, 2017); City of
Tallahassee, Ethics Meeting December 15, 2015 (YouTube video Dec. 15, 2015),
https://www.youtube.com/watch?v=kf0RIIFjcXw&feature=youtu.be.




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614 Stetson Law Review [Vol. 46

  D. Management of the Existing Ethics and Fraud Hotline,
  Investigation of Complaints, and Assessment of Civil Penalties

 I began staffing the Ethics and Fraud Hotline as of October
1, 2014, and this continues as of this publication.166 All calls to
the hotline and inquiries received via email167 or other means are
tracked and reported to the Board monthly. There have been
approximately seventy-eight calls and inquiries between October
1, 2014, and September 2016.168 Many times, callers have general
questions or believe that they have reached someone who can
assist them with issues unrelated to City Ethics violations. It
enhances community trust in the Board to try to assist those
callers in reaching the appropriate venue for resolution of their
issues.
 Once the Board was empaneled, it discussed over several
meetings the desired format for complaints. The Florida Ethics
Commission requires sworn complaints,169 as do other
jurisdictions such as Palm Beach and Jacksonville.170 However,
the Tallahassee Board decided to not require sworn complaints,
but to make many means available to initiate complaints.171
Much public comment and discussion took place to assure that


 166. See Feb. 10, 2015 Minutes, supra note 124, at 3 (stating that Ms. Meadows-Keefe
directly receives and responds to calls made to the Ethics and Fraud hotline); see also
Ethics Hotline Tracking Spreadsheet, CITY OF TALLAHASSEE ETHICS BOARD,
http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-board-
tracking.pdf (last visited Apr. 18, 2017) (listing details of complaints made to the Ethics
and Fraud Hotline).
 167. The Board adopted an easy-to-remember email address for ethics inquiries,
ethics@talgov.com.
 168. It is likely that some complaints will be deemed invalid. See Johnson, supra note 9,
at 758 (explaining that even when there are penalties for making frivolous reports, there
will still be some unfounded complaints).
 169. See Complaint Form, FLA. COMMISSION ON ETHICS (CE FORM 50—EFF. 4/2008),
available at http://www.ethics.state.fl.us/Documents/Forms/Complaint%20Form
.PDF?cp=2017412 (last visited Apr. 18, 2017) (requiring that complaints are “sworn before
a notary or other official authorized to administer oaths”).
 170. See Complaint Form, JACKSONVILLE ETHICS COMMISSION, http://www.coj.net/
departments/boards-and-commissions/docs/ethics-commission/complaint-form-april-2010-
ext.aspx (last visited Apr. 18, 2017) (requiring complaint forms to be sworn before a notary
or other authorized person); Complaint Form, PALM BEACH COUNTY COMMISSION ON
ETHICS, available at http://www.palmbeachcountyethics.com/pdf/Forms/Complaint_Form
_and_Instructions.pdf (last visited Apr. 18, 2017) (requiring complaint forms to be sworn
and notarized).
 171. See Letter from Richard Herring to Members of the Ethics Board, Interim
Interaction with the City 1 (March 30, 2015), available at http://www.talgov.com/uploads/
public/documents/treasurer/pdf/ethics/interim_complaint_process.pdf (explaining that
filed complaints may be sworn or unsworn, and permitting anonymous complaints).




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2017] One City's Story of Ethics Reform 615

the complaint process would be accessible to all, simple and
transparent, easy to obtain and locate, and clearly
understandable.172 The form is available online.173 Another
distinguishing characteristic is that the Board, unlike the Florida
Ethics Commission, can self-initiate  complaints and
 174
investigations. It has not yet done so.
 Generally, when a complaint or inquiry is relayed to the
ethics office, the Ethics Officer determines whether the
accusation would violate state or local ethics codes if it were to be
found true. If it would be a violation, he or she turns all
investigatory materials over to the Board along with a
recommendation. The Board then convenes in a closed meeting to
determine whether or not there is probable cause to believe a
violation has been committed. No matter the outcome, all
documents related to the case are made public following the
closed-door meeting. If they do determine probable cause, the
Board notifies the alleged violator in writing. That person is
entitled to a public hearing in front of the Board––complete with
witnesses and testimony––or they could settle. At the end of the
hearing, the Board will make a written decision or refer the case
to proper authorities. If the person is found in violation of the
City’s Ethics Code, the Board may levy civil penalties.
 The Board also has a process for appropriate referral of
matters to other entities inside and outside the City. One
example occurred following an unsubstantiated ethics complaint
alleging that energy auditors were utilizing their positions to
gain clients for their personal heating and air conditioning
businesses. Subsequently, after meeting with the concerned
citizens, the City Auditor conducted a system-wide audit of the




  172. Aug. 20, 2015 Minutes, supra note at 124, at 4–5; see also Complaint Form,
INDEPENDENT ETHICS BOARD FOR THE CITY OF TALLAHASSEE COMPLAINT FORM,
https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-complaint-form.pdf (last
visited Apr. 18, 2017) (providing clear and simple directions to make a complaint and
specifically stating that complaints may be anonymous).
  173. Complaint Form, supra note 172.
  174. Keeping the Faith, supra note 8, at 113; see also Letter from Gerald B. Curington,
Counsel at Ausley McMullen, to Lila A. Jaber, Chair, Tallahassee Independent Ethics Bd.,
Board Initiated Complaints (Nov. 4, 2015), http://www.talgov.com/uploads/public/
documents/ethics/pdf/eb-151112-12-initiation-legalopinion.pdf (discussing that it was
intended by the legislature that the ethics board be self-regulatory).




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616 Stetson Law Review [Vol. 46

City energy audit program.175 Although there were no findings of
ethics violations in the audit, there were recommendations made
that served to enhance the controls present in the program to
prevent real or perceived conflicts of interest.176
 The first complaint that wound its way through the probable
cause process was one involving the police chief who had
developed a personal relationship with another member of the
police department.177 The Board examined the matter to
determine if the Chief had misused his position in the course of
the relationship. The Board did not believe the conduct rose to
that level and closed the complaint. This required the Board go
into a “shade” meeting as required by sections 112.324(2)(a), (c),
(e), Florida Statutes, which provides in pertinent part:

 The complaint and records relating to the complaint or to any
 preliminary investigation held by . . . a Commission on Ethics
 and Public Trust established by any . . . municipality . . . are
 confidential and exempt from the provisions of s. 119.07(1) and
 s. 24(a), Art. I of the State Constitution. . . . Any . . .
 proceeding conducted by . . . a Commission on Ethics and
 Public Trust, . . . pursuant to a complaint or preliminary
 investigation, is exempt from [the provisions of] s. 286.011, s.
 24(b), Art. I of the State Constitution, and s. 120.525. The
 exemptions in paragraphs (a)-(d) apply until: 1. The complaint
 is dismissed as legally insufficient; 2. The alleged violator


  175. Memorandum from T. Bert Fletcher, City Auditor, to Mayor and Members of the
City Commission, Inquiry into Potential Conflicts of Interest Regarding City Energy
Auditors and Their Secondary Employment (Nov. 12, 2015), available at http://www.talgov
.com/uploads/public/documents/ethics/pdf/eb-151215-EA.pdf; see also Final Audit Follow
up: Inquiry into Potential Conflicts of Interest Regarding City Energy Auditors and Their
Secondary Employment (Report #1611), CITY OF TALLAHASSEE 1–2 (Nov. 12, 2015),
https://www.talgov.com/Uploads/Public/Documents/auditing/pdf/fy16/1611.pdf [hereinafter
Final Audit Follow-Up] (detailing the concerns of the accusations and then outlining the
investigation launched as a result of the accusations).
  176. Final Audit Follow-Up, supra note 175.
  177. See Rossman, supra note 124, at 6A (noting that the complaint about the police
chief was the only complaint that rose to the level of triggering the Board to discuss a
possible ethics violation); see also Jeff Burlew, Ethics Complaint Dropped Against TPD
Chief DeLeo, TALLAHASSEE DEMOCRAT (Oct. 15, 2015, 7:38 AM ET),
http://www.tallahassee.com/story/news/2015/10/14/ethics-complaint-dropped-against-tpd-
chief-deleo/73944636/ (explaining the background of the complaint and the procedures
followed after receiving the complaint); Jeff Burlew, City Ethics Board Taking Up First
Complaint, TALLAHASSEE DEMOCRAT (October 13, 2015, 10:15 PM ET),
http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first-
complaint/73877788/ (issuing that the Board had received its first ethics complaint and
describing the procedure through which the Board would respond) [hereinafter Taking Up
First Complaint].




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2017] One City's Story of Ethics Reform 617

 requests in writing that such records and proceedings be made
 public; 3. The commission determines that it will not
 investigate the referral; or 4. [A] Commission on Ethics and
 Public Trust . . . determines, based on such investigation,
 whether probable cause exists to believe that a violation has
 occurred.178

 The Board explained the reasoning for the “shade” session
prior to it taking place.179 At the conclusion of the session, all
documents pertaining to the investigation and the final order
were immediately provided to the public and news reporters.
Additionally, after the session, the Board held a public debrief at
the following meeting to refine its complaint investigation
process.180
 The second complaint that required the Board to go into a
“shade” session involved the amount and ongoing payment of a
retired Commissioner’s deferred compensation.181 Again, a clear
explanation was given to the public for the “shade” session.182 The
Board found that the complaint was legally insufficient and
closed it.183 As in the first complaint, a public debrief was held
regarding the complaint and the Board received additional
information from City staff regarding how deferred compensation
had been calculated for this Commissioner.184
 The Board also recommended penalties for ethics violations
that were passed by the City Commission in 2016.185


 178. FLA. STAT. §§ 112.324(2)(a), (c), (e) (2016).
 179. Oct. 14, 2015 Minutes, supra note 163, at 17.
 180. Nov. 12, 2015 Minutes, supra note 143, at 6.
 181. Jeff Burlew, City Ethics Board Drops Lightsey Complaint, TALLAHASSEE
DEMOCRAT (June 21, 2016, 9:29 PM ET), http://www.tallahassee.com/story/news/2016/06/
21/city-ethics-board-drops-lightsey-complaint/86213840/ (explaining the nature of the
complaint and why the Board voted to toss out the complaint).
  182. Notice of Executive Session, CITY OF TALLAHASSEE ETHICS BOARD (June 6, 2016),
http://www.boarddocs.com/fla/talgov/Board.nsf/files/AAWH57453AFF/$file/Notice%20of%2
0Executive%20Session%20060616.pdf.
  183. May 21, 2015 Minutes, supra note 148, at 3.
  184. Independent Ethics Board Agenda, CITY COMMISSION CHAMBER 1 (July 19, 2016),
available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/ABVK4U4F4E26/$file/
Ethics%20Board%20Agenda%20July%202016.pdf.
  185. “Enforcement mechanisms may include: disciplinary action, liability for damages
or injunctive relief, civil fines, perjury prosecution for perjury or other crimes; voiding of a
contract; disqualification from contracting with the city; and forfeiture of improper
financial benefits.” Johnson, supra note 9, at 759–60 (footnotes omitted); see also ROBERT
F. WECHSLER, LOCAL GOVERNMENT ETHICS PROGRAMS: A RESOURCE FOR ETHICS
COMMISSION MEMBERS, LOCAL OFFICIALS, ATTORNEYS, JOURNALISTS AND STUDENTS, AND
A MANUAL FOR ETHICS REFORM 723–820 (2d ed. 2013) (providing ideas on establishing a




 Page 90
618 Stetson Law Review [Vol. 46

 E. Employment of Staff and Ethics Officer

 At the Board’s inception, I was the only employee.186 At the
third Board meeting, the Board received a report of my activities
since commencing the role.187 The Ethics Officer’s job description
was also modified to track the new reporting structure for the
position and modified responsibilities.188 Throughout the first few
Board meetings there was ongoing tension over whether the new
Board would re-open a hiring process, do a national search and
interview a range of candidates, or decide to allow me to continue
to function in the role without going through another hiring
process. The concern expressed by critics was whether an ethics
officer hired by the City could serve citizens objectively.189 This
was the subject of discussion at meetings and by the media.190
However, the Board’s first hiring decision came in the form of
retaining outside legal counsel.191 Although I am an attorney and
several Board members are attorneys, the consensus of the Board
and best practices indicate that an attorney is necessary to
represent the Board, whereas the Ethics Officer function is more
of an Executive Director role. Soon after the Board counsel was


disciplinary policy for violations of ethics rules); Memorandum from Julie Meadows-Keefe,
Independent Ethics Officer, to Independent Ethics Board, Penalties for Ethics Violations
(Oct. 28, 2015), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/
eb-151112-10-penalties-memo.pdf (establishing the penalties the Board is authorized to
impose for ethics violations); TALLAHASSEE, FLA., DRAFT OF ORDINANCE NO. 16-O-07,
(Mar. 2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-
160315-16-o-07.pdf (codifying the penalties for ethics violations).
  186. Feb. 10, 2015 Minutes, supra note 124, at 2.
  187. See Report on Ethics Activities, CITY OF TALLAHASSEE ETHICS ADVISORY BOARD
(Mar. 19, 2015), available at http://www.talgov.com/uploads/public/documents/treasurer/
pdf/ethics/ethics-officer-report.pdf (outlining, by month, the duties performed by Ms.
Meadows-Keefe).
  188. See Job Description: Ethics Officer, CITY OF TALLAHASSEE, available at
http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/ethics-officer-
job%20description.pdf (last visited Apr. 18, 2017) (establishing the duties of the ethics
officers as well as the knowledge, abilities, skills, and training an ethics officer must
possess).
  189. Aug. 20, 2015 Minutes, supra note 124.
  190. July 13, 2015 Minutes, supra note 145; see also Jeff Burlew, Ethics Board Facing
New Round of Criticisms, TALLAHASSEE DEMOCRAT (Sept. 15, 2015, 4:58 PM ET),
http://www.tallahassee.com/story/news/politics/2015/09/15/ethics-board-facing-new-round-
criticism/72314558/ (citing conflict of interests concerns regarding the Boards’ members).
  191. July 13, 2015 Minutes, supra note 145; see also Burlew, supra note 106 (discussing
that the Board hired Jerry Currington as outside counsel to advise the Board); May 21,
2015 Minutes, supra note 148, at 3–4 (providing background on the Board’s decision to
retain outside counsel, the purpose hiring outside counsel would provide, and the
compensation structure for said outside counsel).




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2017] One City's Story of Ethics Reform 619

retained, he opined that the Board could establish its own hiring
process, which could include retaining me.192 I was officially hired
as the Independent Ethics Officer at a spirited meeting on August
20, 2015.193 I commenced written monthly reporting to the Board
in November 2015.194
 Currently, these reports include the office’s monthly
activities, the budget, the number of complaints received, and,
during the election season, a report of the number of contribution
requests received.195 There is now one, part-time staff member to
provide administrative support to the Ethics Officer and the
Board.196 There is also a mechanism to retain investigative
services and to hire an advocate to prosecute matters that require
a formal hearing.197

 F. Administration of Campaign Contribution Refund
 Program

 The Charter Amendment included a provision for a
Campaign Contribution Refund program.198 The program allows
an individual registered as a City of Tallahassee elector to receive
a one-time-per-election-cycle refund of up to twenty-five dollars



  192. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Lila A. Jaber,
Chair, Tallahassee Independent Ethics Bd., Hiring Protocol for Ethics Officers (July 30,
2015), available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/
eb-hire-opinion-150820.pdf.
  193. Aug. 20, 2015 Minutes, supra note 124, at 7–10.
  194. Nov. 12, 2015 Minutes, supra note 143, at 1.
  195. See, e.g., Ethics Board Agenda, CITY OF TALLAHASSEE ETHICS BOARD (Aug. 16,
2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/ACQKSG5241FF/$file/
Ethics%20Board%20Agenda%20August%202016%20081016.pdf (noting what is included
in the Ethics Officer’s report).
  196. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
7–8 (Sept. 16, 2015), available at https://www.talgov.com/uploads/public/documents/ethics/
pdf/ethics-board-minutes-150916.pdf [hereinafter Sept. 16, 2015 Minutes].
  197. May 21, 2015 Minutes, supra note 148, at 3.
  198. Sean Rossman, Contribution Rebate Program Off to Slow Start, TALLAHASSEE
DEMOCRAT (May 11, 2016, 4:42 PM ET), http://www.tallahassee.com/story/news/2016/05/
11/contribution-rebate-program-off-slow-start/84224062/; see also Refund Program:
Tracking Language and Identifying Board Role, CITY OF TALLAHASSEE (Jun. 4, 2015),
available at http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb-
refund-program-150604.pdf [hereinafter “Refund Program PowerPoint”] (summarizing the
charter amendment campaign contribution program); Modified Campaign Contribution
Refund Process PowerPoint, CITY OF TALLAHASSEE (Feb. 16, 2016), http://www.talgov.com/
uploads/public/documents/ethics/pdf/eb-160216-board-pres-re-modified-process.pdf
(explaining the steps to be taken for a donor to complete the campaign contribution refund
process).




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620 Stetson Law Review [Vol. 46

donated to a Mayoral or City Commission candidate.199 The Board
is charged with administration of the program and the refunds
are paid by the City from general revenue.200 Budgeting
presented a challenge because the popularity of the program was
an unknown. Twenty thousand dollars was allocated for fiscal
year 2016.201 The initial process was revised to streamline for
both donors and candidates.202 The program has been
controversial and not particularly popular, and it has received
only eighteen refund requests as of September 9, 2016.203

 G. Ensuring Independence and Impartiality

 There is an inherent strain in the relationship between the
Board and the City because the City funds the Board, including
the salary of Board staff and provision of space.204 However, many
similar boards are funded by the entity over whom they
oversee.205 The Board strives to be independent and impartial,
providing maximum practicable input from citizens and
community organizations in spite of the fact that it is funded by
the City Commission. Proponents of the Charter Amendment
were consistent in their pressure to see the Board stand up as an



  199. Refund Program PowerPoint, supra note 198; see also Jan. 19, 2016 Minutes,
supra note 124, at 4 (showing that the City Ethics Board discussed the measure and
passed a motion to move forward unanimously).
  200. Process PowerPoint, CITY OF TALLAHASSEE ETHICS BOARD, available at
http://www.talgov.com/uploads/public/documents/treasurer/pdf/ethics/eb-process-150604
.pdf (last visited Apr. 18, 2017); see also City of Tallahassee Ethics Board Campaign
Contribution Refund Application 2016 Election Cycle, CITY OF TALLAHASSEE (Sep. 16,
2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-cc-
refund-app-150916.pdf (identifying the Ethics Board as the recipient of applications for
campaign contribution refunds).
  201. Budget, CITY OF TALLAHASSEE ETHICS BOARD, available at http://www.boarddocs
.com/fla/talgov/Board.nsf/files/A9W38573B89E/$file/Copy%20of%20Ethics%20Working%2
0File%20051016.pdf (last visited Apr. 18, 2017).
  202. City of Tallahassee Independent Ethics Board Campaign Contribution Refund
Claim Form 2016 Election Cycle, CITY OF TALLAHASSEE, available at http://www.talgov
.com/uploads/public/documents/ethics/pdf/eb-160216-ccrefund-pkg-021016.pdf (last visited
Apr. 18, 2017).
  203. Rossman, supra note 198.
  204. Aug. 20, 2015 Minutes, supra note 124, at 7–8.
  205. New York’s Conflict of Interest Board has sought for several years to obtain a
Charter Amendment to provide it with an independent and protected budget. See Report
on the Fiscal Year 2015 Executive Budget for Conflicts of Interests Board, COUNCIL OF THE
CITY OF NEW YORK (May 22, 2014), available at http://council.nyc.gov/downloads/pdf/
budget/2015/15/eb/coib.pdf (highlighting a goal to amend the charter to provide the Board
with an independent budget to keep the Board looking independent to the public).




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2017] One City's Story of Ethics Reform 621

independent entity to the greatest extent possible.206 Additionally,
the Board has demonstrated independence by implementing a
process for preparing advisory opinions after the Board counsel
opined that this was within Board authority.207 The City
expressed disagreement with this opinion.208 Although there have
been times when the Board’s independence has been questioned,
at the end of 2015, Ben Wilcox of Citizens for Ethics Reform
stated that the Board had a “good sense of its independence” and
that “we have to celebrate the fact that we now have an ethics
board where citizens can bring complaints.”209

 H. Provision for Maximum Practicable Input From Citizens
 and Community Organizations

 The Board was fortunate that its first chair, Lila Jaber, had
served on the Ethics Advisory Panel and had a strong
commitment to civic engagement and consensus building. She
acknowledged that although civic engagement can be difficult
and at times may feel like a personal attack, it was vital to the
building process for the Board and the building of public trust.210
 The Board imposed no time limits on speakers and would
often take public comment throughout the meeting. Citizen
suggestions were often incorporated into Board practices and
procedures. Specifically, the Board received and incorporated


  206. Aug. 20, 2015 Minutes, supra note 124, at 3.
  207. See Taking Up First Complaint, supra note 177 (noting that the Ethics Board is in
the process of dealing with complaints); see also Keeping the Faith, supra note 8, at 117
(outlining how ethics boards generally offer advisory opinions upon request of municipal
employees or officers); Johnson, supra note 9, at 764–65 (opining that cities should have
ethics officers and a process for requesting written ethics opinions); Letter from Gerald B.
Curington, Counsel at Ausley McMullen, to Richard Herring, Chair, Tallahassee
Independent Ethics Bd., Tallahassee Ethics Opinion 2016-1 (Jan 14, 2016), available at
http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160119-legal-opinion-
011416.pdf (summarizing that the Ethics Board has the authority to render advisory
opinions when requested); Advisory Opinion Flow Chart, CITY OF TALLAHASSEE (Feb. 16,
2016), available at http://www.talgov.com/uploads/public/documents/ethics/pdf/eb-160216-
advisory-opinion-flow-chart-020416.pdf (outlining the process to create an advisory
opinion); see also Draft Bylaw: Article XI – Issuance of Advisory Opinions, CITY OF
TALLAHASSEE ETHICS BOARD, available at http://www.talgov.com/uploads/public/
documents/ethics/pdf/eb-160315-advisor-opinion-bylaw-draft-3-4-all-edits.pdf (last visited
Apr. 18, 2017) (identifying potential authority of the Ethics Board to create an advisory
opinion, and outlining the process by which it would be created).
  208. Jan. 19, 2016 Minutes, supra note 124, at 2.
  209. Rossman, supra note 124, at 1A, 6A.
  210. Sep. 16, 2015 Minutes, supra note 196, at 7.




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622 Stetson Law Review [Vol. 46

public input regarding the complaint process.211 Additionally, the
Board received consistent input from citizens regarding the
mindset of board members.212 Related to this, a member of the
public supported by other interested persons proposed a pledge to
be executed by Board Members.213 The Board counsel determined
that the Charter Amendment language did not allow for a
mandatory pledge,214 but that Board members could execute a
voluntary document––the Board approved a form for a voluntary
pledge in August 2016.215
 In September 2015, the Board began broadcasting its
meetings on a City TV channel and YouTube.216 The Board also
seeks to engage with citizens and community organizations. I
have spoken at general meetings of these community
organizations, such as the League of Women Voters, the Florida
Government Bar Association, and local candidate forums, to
educate citizens about the Board and items such as the Campaign
Contribution Refund Program.




  211. See, e.g., Aug. 20, 2015 Minutes, supra note 124, at 1–2 (outlining a request for
anonymous ethics complaints).
  212. E.g., Sep. 16, 2015 Minutes, supra note 196, at 5–6.
  213. Taking Up First Complaint, supra note 177. Sean Rossman, Ethics Board
Approves Self-Initiation, TALLAHASSEE DEMOCRAT (Jan. 20, 2016, 6:43 AM ET),
http://www.tallahassee.com/story/news/2015/10/13/city-ethics-board-taking-up-first-
complaint/73877788/; Oct. 14, 2015 Minutes, supra note 163; Pledge, CITY OF
TALLAHASSEE ETHICS OFFICE, http://www.talgov.com/uploads/public/documents/ethics/pdf/
eb-160216-pledge-pkg-021016.pdf (last visited Apr. 18, 2017) (identifying the different
pledges for board members, city officials, and others involved with the Ethics Board); City
Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD 5 (Dec. 15,
2015), available at https://www.talgov.com/uploads/public/documents/ethics/pdf/eb-
160119-minutes-121515.pdf (requesting that the pledge issue be discussed at the January
2016 meeting).
  214. Letter from Gerald B. Curington, Counsel at Ausley McMullen, to Richard
Herring, Chair, Tallahassee Independent Ethics Bd., Proposed Ethics Board Member
Pledge 1 (June 3, 2016), available at http://www.boarddocs.com/fla/talgov/Board.nsf/files/
AAWH4D4509BE/$file/Informal%20Opinion%20re%20Pledge%20060316.pdf.
  215. July 19, 2015 Minutes, supra note 124, at 2–3.
  216. See Markowitz, supra note 9, at 606 (stating that in order to be successful,
“[p]rinciples of representative democracy require policy to be made in the shadow of public
accountability”) (footnotes omitted); City of Tallahassee, Ethics Meeting August 16, 2016
(YouTube video Aug. 17, 2016), https://www.youtube.com/watch?v=3k8O2MajJkU
(presenting the full ethics meeting that was held on August 16, 2016); City of Tallahassee,
COTNews Featuring WCOT, YOUTUBE, https://www.youtube.com/user/WCOT (last visited
Apr. 18, 2017) (providing a channel to watch videos posted by the city of Tallahassee).




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2017] One City's Story of Ethics Reform 623

 VII. MOVING FORWARD WITH ETHICS REFORM AND
 TIPS FOR OTHER LOCAL GOVERNMENT ETHICS
 PROGRAMS.

 Lila Jaber, who also served as the First Board Chair,
resigned in December 2015.217 The Board elected Florida State
University’s appointee, Richard Herring, as Chair in 2016.218 The
Chair has continued the practice of robust citizen engagement.
He also initiated Board committees to look at issues such as
Board procedures and due process, budget, city policies and
procedures, transparency, and investigatory techniques.219
 What lessons can be learned by looking at the City of
Tallahassee’s experience that may be applied to a local
government seeking to create or enhance a local government
program?
 1. Initiating a discussion at the local government level about
enhancing ethics compliance is not an indictment on anyone. It is
instead a best practice to be proactive and think about your
program during a time when there is no glaring issue. If you
reside in a community where things are quiet on the ethics front,
this is the perfect time to look at processes that can ensure it
continues. Having to respond to a crisis with rushed ethics reform
will not yield the most desirable effect. Even if we believe we only
elect good and moral individuals in our communities, human
beings cannot always be relied upon to use good judgment. Rules
and guidelines serve as guardrails for public officials and
employees. People are even willing to forgive government officials
from misconduct if those individuals are generally likeable and
committed to reforming their behavior.220


  217. Jeff Burlew, Jaber Resigning from Ethics Board, TALLAHASSEE DEMOCRAT (Oct.
14, 2015, 10:31 PM ET), http://www.tallahassee.com/story/news/2015/10/14/ethics-
complaint-dropped-against-tpd-chief-deleo/73944636/. There were also concerns expressed
by some about her law firm’s prior representation of the City. See Rossman, supra note
124, at 1A, 6A (discussing some of the hurdles the Ethics Board overcame during its first
year). See also Sept. 16, 2015 Minutes, supra note 196, at 1 (providing statements by
Jaber that her firm did not undertake any representation of the City of Tallahassee while
she served on the Ethics Board).
  218. Jan. 19, 2015 Minutes, supra note 124.
  219. City Ethics Board, Regular Meeting Minutes, CITY OF TALLAHASSEE ETHICS BOARD
5 (Feb. 16, 2016), http://www.boarddocs.com/fla/talgov/Board.nsf/files/A8ZGBX42DC29/
$file/Minutes%20021616.pdf.
  220. It can be argued that the main objective of ethics laws is to achieve compliance
rather than exact penalties.




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624 Stetson Law Review [Vol. 46

 2. Citizens want a system of accountability within local
government. When an ethical lapse happens, people are often
surprised that their city or county does not have its own, coherent
ethics codes that are clearly communicated to officials and
staff.221 Localities often presume that state ethics codes are
sufficient to address community concerns, only to find out later
that the community wants higher standards. Hallmarks of a good
local ethics program impart consistency, predictability, and
fairness.222
 3. When initiating a new ethics program, it can be helpful to
get a panel of outside experts, as occurred with Tallahassee’s
Ethics Advisory Panel. Those experts should review current state
ethics laws, charter documents, existing ordinances or codes and
policies, and consider how a program may be enhanced or
improved.223 Additionally, experts should obtain buy-in of
leadership and encourage citizen engagement that is inclusive of
and respectful of critics. Do not reinvent the wheel. Look to other
jurisdictions and model codes for help.224




 What we need is nonpartisan statesmanship and visionary leadership willing
 to face up to the fact that relying on the individual judgment of each elected
 official is a failed strategy that guarantees a continuous flow of scandals that
 discredits their institutions and even the enterprise of democratic government
 itself. While I wish more emphasis was placed on character rather than
 compliance, the raw reality is that voters do not consistently demand
 scrupulous integrity as evidenced by the re-election of people severely stained
 by scandal.
Michael Josephson, The Peculiar Concept of Ethics Laws, COJ.NET, http://www.coj.net/
departments/ethics-office/docs/the-peculiar-concept-of-ethics-laws.aspx (last visited Apr.
18, 2017).
  221. See Johnson, supra note 9, at 725 (finding that few municipalities have a code of
ethics to guide their officers and employees).
  222. See id. at 726–27 (observing that while the Ethics Code has a limit in being able to
cover the ethical conduct for all situations, a well-drafted code can help overcome those
limits).
  223. See, e.g., Wechsler, supra note 9 (discussing the use of revolving door provisions in
cities’ ethics codes); Georgia Municipal Association, Ethics in Government: Charting the
Right Course, GMA LEGAL REPORT (July 2010), available at http://gmanet.com/GMASite/
media/PDF/publications/ethics.pdf (providing a sample ethics ordinance and encouraging
cities to modify it to fit their specific circumstances).
  224. Keeping the Faith, supra note 8, at 61, 66; see also, e.g., Complaint Procedures,
CITY OF JACKSONVILLE ETHICS COMMISSION (June 2, 2014), http://www.talgov.com/
uploads/public/documents/treasurer/pdf/ethics/florida-examples.pdf (showcasing examples
of programs in Jacksonville and Palm Beach County, Florida).




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2017] One City's Story of Ethics Reform 625

 4. Realize that an ethics program costs money.225 Hiring
someone on a full- or part-time basis to serve as the single-point-
of-contact for ethics matters in a local government is probably the
most cost-effective method and is a practical solution for localities
where an ethics program has not been a point of concentration or
has limited resources. In larger local governments, a community
may opt for an Inspector General’s Office. Offices of Inspectors
are commonly known as “watchdog” agencies and are found at all
levels of local, state, and federal government.226 This becomes a
more expensive solution.
 5. A local ethics program must have enforcement authority
to have credibility.227 Although one hallmark of a successful
ethics compliance program is a paucity of enforcement actions,228
there will be some community members who will not be satisfied
until someone is led from City Hall or Commission Chambers in
handcuffs. There must be tools in place to penalize violators.
 In summation, it is vital for local governments to set out
clear principles to help public officials know their proper
boundaries, understand the long term implications of their
decisions and conduct, and consider how the public will perceive
them. Local ethics laws, officials, and boards are not just an
academic or window-dressing exercise. Their purpose is not to
require more disclosure forms or prohibit officials’ actions merely
for the sake of public perception. Instead, communities grappling
with local ethics issues should consider the impact of ethics laws


  225. See Governmental Ethics Laws, supra note 14, at 187 (“Training, education, and
quick advice to government employees, all of which cost money, mean fewer ethical
lapses.”). See also Johnson, supra note 9, at 765 (establishing a robust ethics program at
the local level may be costly).
  226. Mission Statement, MIAMI-DADE COUNTY: OFFICE OF THE INSPECTOR GENERAL,
http://www.miamidadeig.org/whatwedo2.htm (last visited Apr. 18, 2017).
  227. Marie Louisa Victor, Enforcement: An Indispensable Component in the Success of
Municipal Ethics Boards, 18 MUN. LAW. 4, 6 (2004). This stated as follows:
 Ethics boards without full and effective enforcement power have often been
 criticized as toothless tigers—and worse. Such boards raise and then dash
 hopes of prompt and fair adjudication of ethics complaints and thus only
 increase the public’s cynicism about the honesty and integrity of our public
 servants. Therefore, municipalities that adopt new ethics laws should do so
 only if they are prepared to grant their ethics boards the powers and duties
 outlined above. Anything less may well reap a whirlwind of censure and
 derision.
Id.
  228. Governmental Ethics Laws, supra note 14, at 186.




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626 Stetson Law Review [Vol. 46

on the officials elected to serve their communities.229 Ethics codes
should embody service orientation, procedural fairness, and the
ethics of democratic responsibility.230 They should be simple for
everyone to understand––officials and citizens alike.231 Rules
should be easily accessible for everyone and be the result of
collaborative efforts with citizens.232
 As the first Board Chair, Lila Jaber, noted at the conclusion
of her term, “‘Even though [the Board] was hard to create and not
always a pleasant experience for the [C]ity, it was an example of
citizen engagement making a difference and then seeing the fruit
of their effort.’”233 Localities seeking to enhance or establish an
ethics program should expect a similar experience. As it was in
Athens, so it is today. Difficult things are worth doing well and
have lasting value for years to come.




  229. Keeping the Faith, supra note 8, at 66.
  230. MIAMI-DADE COUNTY: OFFICE OF THE INSPECTOR GENERAL,
http://www.miamidadeig.org/ (last visited Apr. 18, 2017).
  231. See generally Conflicts of Interest Board, Basis, Structure, and Administration of
Conflicts of Interest (Government Ethics) Laws and Annual Financial Disclosure (Asset
Declaration) Laws, CITY OF NEW YORK CONFLICTS OF INTEREST BOARD (Mar. 2003),
available at http://www.nyc.gov/html/conflicts/downloads/pdf/visitors.pdf (discussing how
to make an effective government ethics program that works); see also Governmental Ethics
Laws, supra note 14, at 177–80 (“[E]thics regulations must always be written and
interpreted in light of reason, common sense, and everyday experience” and drafters
should “know their customer[s]. . . . An ethics provision that is good for a state or major
city may devastate a small municipality.”).
  232. See Governmental Ethics Laws, supra note 14 (finding that easy access to ethics
laws is required for their purpose to be achieved).
  233. Rossman, supra note 124, at 6A.




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Public Integrity, 18: 269–289, 2016
Copyright © 2016 American Society for Public Administraction
ISSN: 1099-9922 print/1558-0989 online
DOI: 10.1080/10999922.2016.1139523




 Missouri Municipal Ethics Survey: Do Ethics Measures
 Work at the Municipal Level?

 Wally Siewert and Adriano Udani
 University of Missouri

 This article addresses the marked lack of scholarly work correlating common measures meant to
 improve ethical performance in local government (ethics codes and training) with actual levels
 of unethical behavior. Analyzing data from a survey specifically optimized to encourage honest
 reporting on ethical infractions, and administered to local government officials and employees in
 Missouri, this study is the first of its kind to adopt Lasthuizen’s typology of governmental ethical
 infractions. Results suggest that ethics training regimens (but not ethics codes by themselves) are
 correlated with measurable drops in reported levels of several of the most commonly observed
 ethical infraction types, though the relationship is more complex than previously reported. A
 surprising finding is that larger municipalities were subject to higher infraction rates, but were
 not more likely to implement ethics measures, indicating that these are the lowest-hanging fruit
 regarding ethics reforms. Further implications are discussed regarding the content and limited
 impact of ethics training, leading to recommendations for both practitioners and researchers regard-
 ing the full range of ethics measures.

Keywords: ethical infractions, ethics codes, ethics measures, ethics training, local government

As a part of a renewed focus on local government ethics in recent decades, a variety of measures
to address ethical issues at the municipal level have become widespread. These ethics measures
include good-government reforms of various kinds, such as ethics laws, ethics codes, ethics
training, and the creation of ethics commissions and complaint processes. In particular, ethics
codes and ethics training have become a central feature of local government reform around the
country (Berman, West, & Cava, 1994; Feldheim & Wang, 2004; Kaptein & Avelino, 2005).
However, with one notable exception, scholars have obtained minimal direct evidence regarding
the effect of any of these measures on ethical infraction frequencies in the public sphere aside
from a vast wealth of anecdotal stories (Lasthuizen, Huberts, & Heres, 2011; Menzel & Benton,
1991; Van Montfort, Beck, & Twijnstra, 2013; West & Berman, 2004). The one notable excep-
tion, not mentioned by any of the above, is the Ethics Resource Center’s (2007) National
Government Ethics Survey (NGES). The current paucity of data on this front has not prevented
various agencies from making claims about those effects; the website of the Office of the New
York State Comptroller claims that ethics training can accomplish a number of things, and at the
top of the list is the assertion that it can “reduce the instances of unethical behavior” (http://
www.osc.state.ny.us/localgov/training/modules/protecting/two/train1.htm).

 Correspondence should be sent to Wally Siewert, Center for Ethics in Public Life, University of Missouri
St. Louis, 707 Tower, 1 University Blvd., St. Louis, MO 63121, USA. E-mail: siewertw@umsl.edu




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270 SIEWERT AND UDANI



 Empirical data regarding actual levels of ethical misbehavior in public agencies can be
problematically difficult to develop. Conclusions gained from analyzing public scandals might
say much more about levels of transparency and scrutiny than actual violation frequencies. On
the other hand, answers on survey questionnaires about infractions are subject to a strong social
desirability bias. This is especially true in the public sector, given the expectations of publicity
that come along with it. Additionally, the variability and descriptive subjectivity of ethical
violations can cause problems for any attempt at correlating violation types with underlying
factors.
 This article presents the results of a pilot study that was the first of its kind to build on recent
work in public ethics violation typology and utilize an anonymous online survey methodology
optimized to address these issues. The 2013 Missouri Municipal Ethics Survey (MMES) was
administered to municipal government officials, administrators, and employees across the state
of Missouri. The main objective of the survey was to shed some light on an important area of
public ethics that has not received substantial treatment in public administration scholarship:
namely, the degree to which ethics codes and ethics training impact observed rates of ethical
infractions in specific categories. The authors were particularly interested in seeing how the
implementation and impact of these ethics measures differ across municipality size.
 The results show that the frequency of observed ethics violations differs in relation to the
level of emphasis participants perceive their department to be devoting to ethics training. How-
ever, compared to the NGES, the relationship between ethics measures and violations is shown
to be more complicated. The results provide the strongest evidence of ethics training impact for
three kinds of ethics violations: carelessness with confidential information, indecent treatment
of colleagues, customers, or citizens, and improperly accepting personal gifts. While the results
provide a limited validation for the impact of ethics measures, the study also highlights the
degree to which such measures are poorly understood, haphazardly implemented, and rarely
evaluated for effectiveness. These findings lead to a variety of implications for both researchers
and public officials.
 The article is organized as follows: The first section provides an overview of the relevant
literature. Particular emphasis is given to Lasthuizen et al. (2011), upon which the ethical
infraction categories in the study are predicated. The second section builds upon these infraction
categories to develop four hypotheses regarding the relationships between observed infraction
rates in those categories, on the one hand, and levels of ethics training, implementation of ethics
codes, and variation in municipal size, on the other. The third section covers the data and
methods employed in the MMES, which is designed to test these hypotheses, followed by pres-
entation of the results of the survey in detail in the fourth section. Finally, in the fifth section,
the implications of these results for practitioners and researchers are discussed.


 LITERATURE REVIEW

Ethics Training and Ethics Codes

While there is something of a lacuna in the literature regarding actual observed ethical infrac-
tion levels in the public sphere, it is also true that ethics training and ethics codes—the ethics
measures and policies that this study is looking to connect to infraction rates—have received




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 MISSOURI MUNICIPAL ETHICS SURVEY 271


generous attention. A study by West and Berman (2004) of cities with populations over 50,000
finds that 64% offer some form of ethics training activity, though only 36% call it “ethics train-
ing.” Training is mandatory for managers in approximately half of the cities that offered it. The
West and Berman study also links ethics training to ethical culture, labor–management rela-
tions, and employee productivity. Feldheim and Wang (2004) find that 28.2% of cities surveyed
have mandatory ethics training for managers, and 31.9% have some ethics training programs.
 When it comes to the content of ethics training, the most widespread model is a “compliance
model” (Menzel, 2007). This kind of content focuses on conforming to applicable rules and
regulations. It is often referred to as the “low road,” in the sense that it is designed to spur
compliance with minimal legal and regulatory thresholds for ethical behavior (Lewis, 1991).
This stands in contrast to what Hejka-Ekins (1988) calls a “high-road” approach; that is, one
that focuses on the values underlying the regulations. The high-road approach stresses character
education, promoting responsibility and moral autonomy in public servants at all levels, with an
emphasis on moral reasoning and knowledge (Menzel, 2007).
 Van Montfort et al. (2013) delineate a number of dimensions on which the characteristics of
training programs can vary: whether the training is mandatory or voluntary, whether it is an
insider or outsider doing the training, whether the training is open to training examples from
the participants, whether there are follow-up meetings, what the duration of the program is, as
well as the size of the participant group. Of course, these variables operate within the wider orga-
nizational context; the organization may or may not be conducive to good discussions of ethical
issues, and their effects may or may not be conditional upon the characteristics of the participants.
 With respect to codes of ethics, Feldheim and Wang’s (2004) work suggests that 7 of 10
large cities have a code of ethics. This makes ethics codes by far the ubiquitous form of
municipally implemented ethics measure. Ethics codes have become a foundational part of pro-
fessional public administration at the local, national, and international levels. The Organization
of American States Inter-American Convention Against Corruption states that public servants
“should be subject to codes of conduct,” including “requirements for financial and other
disclosures, and appropriate disciplinary measures” (cited in Gilman, 2005, p. 5). As with
the content of ethics training, the content of codes of ethics can roughly be divided between
low-road compliance strictures and high-road “aspirational” language. Meine and Dunn
(2013) provide a useful overview of a number of public sector codes of ethics and their elements
with respect to developing ethical competency. Svensson and Wood (2004) develop a typology
specific to public sector codes of ethics. Gilman (2005) describes successful codes as having
practical behavioral goals, being connected to the emotional import of the norms therein, and
being institutionally supported and subject to feedback as a living document.
 Other empirical studies focused on observed ethical states of affairs in the public sphere
address a wide range of factors. Menzel and Benton (1991) examine several databases, includ-
ing ethics complaints filed with the Florida Commission on Ethics, in an attempt to define some
historical/cultural, political, bureaucratic, and demographic features of local jurisdictions that
might correlate with levels of ethics complaints. They find that levels of population growth
and education levels are the two most influential factors influencing ethics complaints.
Feldheim and Wang (2004) report on a national study of cities with populations over 50,000,
linking ethical behaviors with public trust. They find that cities where managers have higher
perceptions of ethical behavior are also cities where perceptions of public trust are higher. Their
recommendations include integrity training, transparency and openness within the organization,




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272 SIEWERT AND UDANI



promoting “frank communications between employees and managers,” loyalty to changing
public needs, and performance evaluations involving public servants and citizens (p. 73).
 Other studies that use surveys to measure public ethics factors concentrate on ethical
attitudes and environments nationally (Bowman, 1990 ; Bowman & Knox, 2008 ; Bowman
& Williams, 1997); practitioner’s values and expectations (Schmidt & Posner, 1986); compar-
ing the public and private spheres (Berman et al., 1994); measuring and survey methodology
(Giacalone, Jurkiewicz, & Knouse, 2003; Kaptein, Huberts, Avelino, & Lasthuizen, 2005);
correlations of ethical climates with damage claims and complaints against the municipality,
as well as injury and sick leave (Waring, 2004); and correlations between ethical climate and
organizational performance (Menzel, 1993). Menzel (2007) provides a survey of large metro-
politan cities and counties with ethics management programs.


Measuring and Categorizing Ethics Infractions

Two recent studies focus specifically on observed levels of ethical infractions in various types
of public organizations: the Ethics Resource Center’s National Government Ethics Survey
(2007), which is one element of a longitudinal National Workplace Ethics Study focused
primarily on the private sector, and Kaptein and Avelino’s “Measuring Corporate Integrity:
A Survey-Based Approach” (2005), which also includes a subset of public entities in the survey.
Generally, both studies find that observed ethical violations trend toward parity between the
public and private spheres. Kaptein and Avelino (2005) further find that two information
categories show increases in the public sector: “false/misleading information to public or
media” and “false/misleading statements to government regulators” (p. 73). Given the impor-
tance of transparency in governmental functioning (and the link between accurate reporting
and accountability), this finding should be somewhat alarming.
 The NGES breaks out the results by federal, state, and local government. Again, in each case
the broad trend is toward parity with the private sector, with a majority of categories near the
national average. However, whereas the federal government shows two categories significantly
below national averages (lying to stakeholders and misreporting hours worked), and a number of
categories significantly above the national averages (environmental violations, Internet abuse,
misuse of confidential information, and safety violations), state and local governments have
no categories below the national average. In fact, a number of them are significantly above
national averages (at the state level: using competitor’s inside information, misuse of confiden-
tial information, discrimination, improper hiring practices, abusive behavior, lying to employees,
and putting own interests ahead of organization’s; at the local level: environmental violations,
improper hiring practices, Internet abuse, and abusive behavior).
 Kaptein and Avelino (2005) publish no correlations of ethical measures and environments
with rates of observed violations. However, the NGES makes very strong claims on this front.
According to the NGES report, the presence of both a well-implemented ethics-and-compliance
program and a strong ethical culture can reduce misconduct by 60% (NGES p. v). The NGES is
a broad survey that addresses a wide variety of infractions in tandem with their contributing
factors: ethical culture, ethics codes and training, ethics reporting mechanisms and rates, and
ethical components of employee evaluations. The MMES is a more focused project, one that
examines more closely—and brings into some doubt—assumptions made in the NGES.




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 MISSOURI MUNICIPAL ETHICS SURVEY 273


 Despite their contributions, these studies have limitations. First, the NGES investigators
assume that traditional methods of ensuring anonymity in surveys are sufficient to overcome
the social desirability bias when asking about ethics violations in the public sphere. Telephone
surveys involve a live conversation in which a respondent is asked to admit to a live inter-
viewer, for example, having observed but not reported one or more instances of criminal ethical
violation. Indeed, the public sphere is particularly susceptible to the social desirability bias.
However, given that new survey technologies (online surveys) are now available to help miti-
gate that bias, this is an assumption that should no longer be relied upon.
 Second, the NGES investigators assume that misconduct that is overtly illegal is “more
likely to be documented” (NGES p. 3). It may be true that such infractions are more likely
to draw attention once they are documented. However, considering both the inherently surrep-
titious nature of such actions and the increased pressure of the social desirability bias when
respondents are asked to report on illegal actions, it is not implausible to conclude that
directly criminal behavior is, in fact, less likely to be documented via either a survey or
official reporting.
 Third, both studies were primarily addressed to the private business sphere. The NGES is
a subset in a wider survey comprising only 22% (n ¼ 774) of the respondents to the National
Workplace Ethics Study, and only 15% (n ¼ 344) of the respondents in Kaptein and Avelino
(2005) were public employees. A much greater amount of data regarding ethical states of
affairs is available for the private sector than for the public sector. However, the private
and public sectors are significantly different, and should be studied independently. To begin
with, the private and public sectors diverge along fundamental normative dimensions,
including the monopoly on the use of justified coercion, mandates to represent limited priv-
ate vs. all-encompassing public interests, limited vs. almost limitless pervasive impact on
constituents’ lives, and voluntary vs. involuntary membership (Rawls, 1971). They also
diverge along significant organizational and cultural dimensions, including differences in
market exposure, legal and formal constraints, public oversight, and political influences
(Boston, Martin, Pallot, & Walsh, 1996). These differences clearly warrant an independent
focus on the public sphere regarding these issues, and that focus is beginning to emerge
(Van Montfort et al., 2013).
 Finally, neither study utilized any research-supported standardized infraction category
scheme. The lack of standardized categories or descriptive language to delineate the various
kinds of infractions and infraction families has been a central difficulty in attempting to
compare ethical infraction data in the public sphere. Without such empirically verified standards
differentiating infraction types, it is problematically subjective for both the researcher and the
respondent. When taken together, these limitations at least demand a re-examination of the
strong claims the NGES makes with respect to the effect of ethics measures and culture on
ethical infraction rates.
 Lasthuizen et al. (2011) provide the first comprehensive attempt to introduce some
standardized categories and descriptive specificity into the rapidly expanding literature on ethics
violations in governance. A central goal of their work is to address the almost exclusive focus
on “corruption” in international studies on public ethics, arguing that this excludes a large array
of moral breaches that are central to ethics and integrity discussions in the Western world.
Lasthuizen et al. (2011) offer a validated typology of ethical infractions in governance that
seeks to avoid problems of “oversimplification, overgeneralization and/or immediate




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condemnation” when infraction types are not distinguished (p. 387). As a broad and inclusive
starting point, the violations they seek to address include:
 . All types of behavior relevant to the organization: behavior within the organization,
 interactions with external actors (citizens), and private-time behavior as far as it is
 considered relevant for the organization;
 . All types of relevant moral norms and values: in laws and rules, in internal codes and
 procedures, and in informal norms and values not written down; and
 . Behavior contrary to the organization’s interests but also behavior favoring the organi-
 zation but harming relevant social norms and values.
 Drawing on previous work by Hubert (1998) on police integrity, Lasthuizen et al. (2011)
develop a questionnaire with 64 manifestations of integrity violations. In each case there is
an item querying the rate of observation, as well as an item querying the respondent’s moral
judgment, measuring the acceptability of the violation. Using a multiple-step principal-
component factor analysis, the authors develop 10 families of infraction types that vary along
frequency and acceptability dimensions. Within each of these, more serious and less serious
forms of behavior can be distinguished (see Table 1).
 Although the study is limited to examining one type of public organization (police) in one
society (the Netherlands), the development of the typology included considerations and compar-
isons from other fields of study, including organizational sciences, theories of ethics in business
and public administration, and police research. The resulting families of integrity violations are


 TABLE 1
 Lasthuizen Infraction Categories and Their Descriptions

Violation category Category description

1. Corruption: Bribing Misuse of (public) power for private gain; asking, offering, accepting bribes
2. Corruption: Favoritism Misuse of authority or position to favor family (nepotism), friends (cronyism),
 or party (patronage)
3. Fraud and theft of resources Improper private gain acquired from organization or from colleagues and
 citizens, with no involvement of external actor
4. Conflict of (public and private) Interference (or potential interference) of personal interest with e public/
  interest through gifts organizational interest because of gifts, services, assets, or promises taken
5. Conflict of (private and public) Interference (or potential interference) of personal interest with public/
  interest through sideline activities organizational interest because of jobs or activities practiced outside
 organization
6. Improper use of authority Use of illegal/improper means or methods to achieve organizational goals
 (sometimes for “noble causes”)
7. Misuse and manipulation of Intended or unintended abuse of (access to) information, such as cheating,
  information violation of secrecy rules, breaching confidentiality of information, or
 concealing information
8. Indecent treatment of colleagues Includes not only discrimination (based on gender, race, or sexual orientation),
  or citizens intimidation, and sexual harassment but also improper behavior like
 bullying, nagging, and gossiping
9. Waste and abuse of organizational Failure to comply with organizational standards and/or improper performance
  resources or incorrect/dysfunctional internal behavior
10. Misconduct during private time Conduct during private time that harms people's trust in (public) organization




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anticipated to be “universal, and are thus useful for describing unethical behavior in almost all
(public) organizational contexts” (Lasthuizen et al., 2011, p. 389).


 HYPOTHESES

The literature on ethics infraction rates and ethics policy measures provides a strong foundation
on which to hypothesize regarding the actual effects of ethics policies on ethical infraction rates.
Indeed, the Lasthuizen et al. (2011) study offers an improvement in examining ethical viola-
tions. Despite its contribution, few studies thus far have attempted to ascertain whether the
implementation of ethics codes and an emphasis on actively training employees on ethics issues
have any meaningful effect on actual infraction rates. Following is a discussion of four testable
hypotheses that begin to fill the gaps that emerge from a review of the literature on ethics
violations in municipalities.
 First, it is anticipated that the frequency of reported ethical infractions will be positively
correlated to municipal population size (H1). This hypothesis rests on the assumption that as
the size of the administrative body increases, the temptation to infract (bigger, more complex
budgets, larger stakes) and the opportunity to infract (more interactions and transactions, and
more personnel involved) increase as well. Menzel and Benton (1991) show that common
assumptions about what influences public attention to ethics (such as the size of the population
in question) might be mistaken. It may be that common assumptions about what variables
influence the number of ethical infractions are also wrong.
 Second, it is also posited that the implementation of ethics codes and ethics training for
municipal officials, managers, and employees will be positively correlated to municipal popu-
lation size (H2). This hypothesis rests on the assumption that the greater incidence of ethical
infractions in larger municipalities should increase pressure to develop ethical tools, as well
as the idea that a larger population with more resources and a more complex and professional
oversight structure will put greater pressure on its administration to institute an ethics regimen,
even if only for appearances. Ethics codes are the most ubiquitous of ethics measures, but they
are still implemented in less than three quarters of large cities (Feldheim & Wang, 2004).
 The main contention of this article is that scholars must take the lead in evaluating whether
the emphasis on such policies and measures in public agencies is likely to be effective in
reducing the rate of observed ethical infractions occurring in said agencies. This evaluation
is achieved by the last two hypotheses.
 Third, it is expected that reported frequencies of ethical infractions will have a negative
correlation with the implementation of ethics codes (H3). The idea is that by having an ethics code
written into the agency’s standard operating procedures—thereby providing an ethical framework
for officials, administrators, and employees—ethics codes reduce the temptation toward infrac-
tions. They might do this both by clarifying and modeling ethical practices and by delineating
the consequences of unethical behavior. As such, it is an empirical question of whether or not
these goals are achievable merely with codes of ethics. While written bylaws are indeed important
to the operation of administrative agencies and to establishing the social norms to which employ-
ees must conform and be held accountable, they may not be sufficient to actually alter behavior
and reduce the rate of observed ethical infractions in an agency. As pointed out by Gilman (2005)
“any final analysis of the impact of a code must include how well it affects behavior” (p. 6).




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 Fourth, it is anticipated that the reported frequencies of ethical infractions will have a negative
correlation with the implementation of ethics training (H4). Ethics training should encourage
ethical behavior and serve to improve the ethical environment in a municipal administration.
Ethics training should provoke a substantive discussion on the municipality’s ethical guidelines
among officials, administrators, and employees. This serves not only to highlight the permissible/
impermissible fence posts and some of the most common accidental—and not so accidental—
routes past them, but can also help to foster an open atmosphere that encourages ethical practices
and dialogue, thus helping to avoid difficult situations in the first place. As the literature review
shows, ethics training is not only much less widely utilized than ethics codes, but due to its nature
can vary greatly based on circumstances and content. Despite these variations, if ethics training as
a policy cannot show an overall impact (even a small one) on ethics infractions, a review of
general assumptions about ethics policies and measures may be called for.
 Finally, a quick word on the limited nature of the hypotheses tested. The present work begins
to fill in some gaps, but is by no means a comprehensive assessment of ethics measures. First,
ethics codes and training are but two of a wide variety of ethics measures that may be implemen-
ted. Second, the authors are assessing neither all of the motivations for, nor the complete impact
of, ethics codes and training. Such measures may be implemented for other reasons besides
directly reducing infraction rates. These motivations may include reducing an agency’s legal
liability by showing a reasonable effort to address ethics issues. Such measures may also be
implemented in order to burnish the public perception of the agency in question. In fact,
anecdotal evidence suggests that burnishing an agency’s image post-scandal is one of the most
common ways that ethics measures are introduced in municipal settings. Further, while ethics
training and codes may serve to mitigate unethical behavior, they may also serve to support
and encourage more ethical behavior, such as going the extra step to ensure that purchasing
and hiring processes are done in the most transparent and objective manner possible. Finally,
the survey did not ask for specific frequency, duration, and quality of the ethics training in respon-
dent agencies. Instead, the general “emphasis” on ethics training was queried. The present work is
limited to infraction reduction as a consequence of general implementation levels of ethics codes
and training. Some of the space left unexplored will be addressed in the implications section.


 DATA

The present study tests the proposed hypotheses by administering the 2013 Missouri Municipal
Ethics Survey (MMES). The survey universe is pulled from the Missouri Municipal League’s
listing of Missouri municipalities. Because the target of this research is common-size
municipalities and not large metropolitan cities, St. Louis and Kansas City are excluded from
the survey universe. Aside from these exceptions, every member of the target population was
contacted. The MMES was conducted online in a manner that placed a high premium on the
respondent’s sense of anonymity. Research shows that a strong sense of anonymity on behalf
of the respondent can counter the social desirability bias (Randall & Fernandes, 1991), and that
online surveys are particularly suited for this purpose (De Leeuw, 2005; Frippiat, Marquis, &
Wiles-Portier, 2010; Joinson, Paine, Buchanan, & Reips, 2008; Kreuter, Presser, & Tourangeau,
2008). An initial decision was made to administer the survey using a widely recognized
publicly available online survey service (SurveyMonkey), which the respondents might




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have encountered before and with which they were perhaps familiar and more comfortable than
other methods.
 Contact with each municipality began with a phone call to the municipal clerk, the script for
which emphasized the anonymity of the survey. If the clerk indicated a willingness to take part
and/or distribute the survey to other officials and employees in the municipality, an e-mail was
forwarded that again emphasized anonymity and contained a link to the survey. In order to main-
tain the respondent’s sense of anonymity throughout the survey-taking process, the demographic
data were limited to just enough to ensure that the study had a sufficiently diverse sample. For
example, respondents were not queried about which region of Missouri they resided or worked
in. Instead, the survey was administered in phases, beginning with the areas surrounding Kansas
City and St. Louis, then expanding into the rest of the state to ensure that an appropriate mix of
urban and rural municipalities was represented. The demographic data requested of respondents
included only a title description, length of service in present position, length of service in public
service generally, and the size of the municipal population served. Respondents were asked about
their experiences with ethics infractions in their present position, which permitted statistical tests
to control for how much time the person had spent in that particular position.
 Of 540 contacts (all of the Missouri municipalities listed by the Missouri Municipal League
in 2012), 166 valid responses were recorded. While not ideal, it is a sufficient response rate rela-
tive to online survey standards (Frippiat et al., 2010). In the MMES, most respondents (33.3%)
are city managers or administrators, followed by city/county employees in nonmanagerial
positions (28.3%), city clerks (13.3%), and city council members (10.8%). Thirty-four percent
of respondents work in municipalities with less than 1,000 people; 23% in municipalities
with 1,000–5,000 people; 16.2% in municipalities with 5,000–10,000 people; and 26.7% in
municipalities with more than 10,000 people. Compared to the population from which the
sample is drawn, 55% of Missouri municipalities have less than 1,000 people; 27% have
1,000–5,000 people; 7% have 5,000–10,000 people; and, 11% have more than 10,000 people.
 Table 2 provides the sample distribution of respondents by current position and size of munici-
pality in which they work. A larger proportion of city managers/administrators serve in mid-range
municipality populations. With the exception of the smallest municipalities, the MMES comprises
more responses from city managers/administrators than nonmanagerial staff. A majority of
respondents (57.7%) who work in municipalities with 5,000–10,000 people are city managers,
assistant city managers, administrators, or directors of administration. In contrast, only 39.5%
of respondents with the same position work in municipalities with 10,000 people or more. In
municipalities such as these, a sizable proportion of respondents are city council members or hold
elected positions (30.2%). In comparison, 23.1% of respondents are city council members or
hold elected positions and work in municipalities with 5,000–10,000 people.
 Additionally, over half of the participants (59%) have worked in public service for more
than 10 years. At the time of the survey, participants also generally have worked in the same
position for a long period of time. The median response category is between 5 and 10 years,
while 33% of participants have worked in their current job for more than 10 years. Twenty
percent of participants have worked in their current job between 1 and 2 years.
 The main concepts of interest are ethical violations and ethics codes and training. With
respect to the latter, respondents were asked whether “your agency” had a code, and what level
of emphasis (if any) was put on ethics training. The neutral word “agency” was used in order to
not bias the reports by unnecessarily limiting the question to the respondent’s own department,




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 TABLE 2
 Sample Distribution of Respondents by Current Position and Municipality Population

Position <1,000 1,000–5,000 5,000–10,000 ≥10,000

Other 1.82 2.7 3.85 2.33
City council member 1.82 2.7 15.38 27.91
County elected official 0.00 0.00 0.00 2.33
City manager/administrator 18.18 45.95 46.15 30.23
City or county employee 40.00 29.73 11.54 25.58
Director of administration 0.00 0.00 7.69 2.33
Mayor 7.27 2.7 7.69 0.00
Other local office 0.00 0.00 0.00 2.33
Special district employee 0.00 0.00 3.85 0.00
Trustee/chairperson of trustees 1.82 0.00 0.00 0.00
Assistant city manager/administrator 0.00 0.00 3.85 6.98
City clerk 29.09 16.22 0.00 0.00
Total 100% 100% 100% 100%

 Source: 2013 MMES.
 Notes: Sample is equal to 166 respondents who provided a current employment position. Distribution of respondents
is expressed as the percentage of respondents in a municipal population size category.


but also not unnecessarily expanding it beyond the respondent’s range of knowledge by asking
about broader terms such as “your municipality.”
 With regard to ethical violations, these can, of course, come in an almost endless variety.
They can be single acts by an individual, or they can be comprised of a diachronic sequence
of events involving any number of actors. They can be intentional, negligent, or merely acci-
dental. They can vary in seriousness from feloniously criminal to barely worth mentioning.
What counts as a violation in one context may not count as one in another context. Background
information may mitigate the all-things-considered blame attached to a violation, even when the
act itself is clearly prima facie a violation. Especially in a public institutional context where
complex positional obligations, duties, and prohibitions are layered on top of (and can often
conflict with) personal obligations, duties and prohibitions, attempting a broad measure of
the actual levels of ethical infraction is a daunting exercise to say the least.
 Given a particular context, one approach is to attempt to define some broad categories of infrac-
tion types that serve to subsume much of the variation within a typology that groups families of
violation types together. It is for this reason that the work of Lasthuizen et al. (2011) is so crucial
for a project like this one. The typology provides a coherent proven starting point from which to
proceed when measuring ethical infractions. A significant challenge was to develop a set of intuit-
ively clear questions for the respondents regarding different types of possible unethical behavior that
would correlate with the Lasthuizen categories, allowing the study to draw some conclusions about
the effect of the independent variables on the infraction rates in these various established categories.
 However, the variability of descriptions of ethical infractions is not the only challenge. The
social desirability bias is not just a general problem, but is itself variable. It is sensitive to the
moral opprobrium attached to the particular form of ethical infraction in question. The higher
the levels of moral condemnation attached to a particular infraction type, the more likely that
respondents will not feel comfortable honestly reporting on the frequency with which they
have observed such actions. Actions that are directly criminal, and understood as intentional




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corruption (such as bribe-taking, or embezzlement and theft), are therefore theoretically much
more subject to social desirability bias than actions that may be unethical, but are not intention-
ally criminal or corrupt (such as carelessness with confidential information, or creating a hostile
work environment). Intentionally criminal or corrupt actions are also presumably more difficult
to observe, since the actor will likely take precautions to avoid observation. Further, inquiring
about a kind of infraction that is intentionally criminal or corrupt can not only suppress positive
responses for that particular question, but also have lingering effects for other, related questions.
 In addition, it is not an unreasonable assumption (though not one supported by any data) that
the closer an infraction is to direct criminality, the less responsive infractions of that type will be
to the implementation of ethics codes and training. Corruption, theft, and fraud presumably
carry their own very powerful motivations that will probably find only a weak opponent among
the motivations and knowledge instilled during an ethics training session.
 As a result of these considerations, a decision was made to exclude the first two categories of
direct corruption in the Lasthuizen typology from the survey. Categories (1) bribing, and (2) nep-
otism are therefore not addressed. However, some directly criminal questions about embezzle-
ment and theft were included toward the end of the list of possible infractions on the survey
(so as to minimize their impact on other questions). Given that the survey concerned observed
levels of unethical behavior, the present study also considers what types of infractions in the
typology might not be amenable to direct observation within the workplace. Ethical infractions
that involve elements outside of the workplace are problematic in this respect; therefore the two
categories of infraction that involved such elements were also not included: (5) conflicts of inter-
est through sideline activities, and (10) misconduct in private time. This leaves the survey with
questions directly addressing 6 of 10 of Lasthuizen’s infraction types. The rate at which survey
participants observed each ethical violation was measured using an ordinal scale consisting of
five response categories: Never (0); Rarely (1); Sometimes (2); Often (3); Constantly (4).
 To measure the main correlates of ethical infraction levels, several independent variables
were employed. First, an ordinal-level variable was used to measure municipal population that
categorized population size according to under 1,000 people, 1,001 to 5,000 people, 5,001 to
10,000 people, and more than 10,000 people. Second, participants were asked whether their
agency had a written code of ethics in place. Responses were coded using a binary framework
that signified that their agency either did not (0) or did (1) have a written code of ethics. Last,
participants were asked about the extent to which they believed ethics training is emphasized
within their agency. An ordinal-level variable was used to measure ethics training emphasis,
where participants had the choice of selecting no emphasis (0), little emphasis (1), some empha-
sis (2), or strong emphasis (3).


 METHODS

The analysis consists of comparing the proportion of survey participant subgroups that observe
each of the six kinds of ethics violations. The main subgroups of interest are based on the main
independent variables:
 . population size of the municipality in which the participant works,
 . whether the participant’s agency has an ethics code, and
 . level of emphasis on ethics training in the participant’s agency.




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 The methods employed in this article identify whether there are statistically significant
differences in ethics violations across population size, institutionalized ethics codes, and levels
of training emphasis. Correlations are used to measure the magnitude of the association between
each ethics violation category and each independent variable. As such, this study is not prepared
to say anything causal; rather, it aims to highlight trends in ethical infractions across municipa-
lities, training emphasis, and formal agency code.

 RESULTS

Table 3 correlates the Lasthuizen infraction categories with specific questions asked in the
MMES. Table 4 provides the variation of ethical infraction observations across the most com-
mon employment categories in the 2013 MMES. The data show that some ethical infractions
are more visible or common based on one’s position in public service. City council members
believe that mishandling of confidential information and waste of organizational resources
occur more frequently than those in other positions do. City managers and administrators
believe that improper gifts and improper use of authority occur more frequently than council
members and nonmanagerial staff. Observation of instances of indecent treatment is frequent
among city managers/administrators, and even more frequent among staff members.
 Table 5 provides correlations between ethical infractions and municipality population size.
In the second column, Spearman correlations are provided to estimate a linear relationship
between variables that are not assumed to be normally distributed, but are at least measured
at the ordinal level. Spearman correlations also test the extent to which two ordinal variables
are independent. As such, statistical significance indicates at what level the null hypothesis is
rejected. In the third column, the extent to which ethical infractions significantly differ across
municipality size is also assessed.
 The results provide evidence for H1. Except for reporting instances of fraud and theft, ethical
infractions have positive and significant correlations with increasing municipal population size.
While the null hypothesis can be rejected in a majority of ethical infractions, the magnitude of
association with municipality size is moderately small. Further, the results provide strong
 TABLE 3
  Lasthuizen Infraction Categories Surveyed in MMES and Questions Addressing Each Type of Infraction

 Specific infraction questions associated with each category:
 “How often have you witnessed the following kinds of
Lasthuizen infraction category ethical infractions in your present position?”

Fraud and theft 1. Theft and embezzlement
 2. Financial gain due to misuse of confidential information
Mishandling and manipulating 1. Carelessness with confidential information
  confidential information 2. Misuse of confidential information
Conflict of interest through personal gifts 1. Acceptance of improper gifts or favors
Indecently treating colleagues, customers, 1. Violation of employee privacy
  or citizens 2. Hostile work environment
 3. Sexual harassment
Improperly using position of authority 1. Vote and favor trading behind closed doors
Intent to waste and abuse 1. Falsification or improper manipulation of financial data
  organizational resources




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 TABLE 4
 Observation of Ethical Infractions by Most Common Position Types

 Mishandling/ Conflict of Waste and
 manipulating interest Improper abuse of
 Financial confidential through use of Indecent organizational
Position gain information gifts authority treatment resources Obs.

City council member 0.28 1.44 (1.10) 0.28 0.17 0.61 0.44 (0.92) 18
 (0.83) (0.57) (0.38) (0.92)
City manager/ 0.17 1.37 (0.81) 0.46 0.41 0.83 0.19 (0.52) 54
  administrator (0.50) (0.69) (0.79) (0.95)
City/county employee 0.26 1.15 (1.08) 0.34 0.34 0.96 0.17 (0.48) 47
 (0.61) (0.76) (0.92) (1.04)
City clerk 0.24 0.86 (0.89) 0.09 0.14 0.68 0.14 (0.47) 22
 (0.77) (0.29) (0.47) (1.04)
All other 0.16 1.13 (0.80) 0.56 0.54 0.52 0.16 (0.48) 25
 (0.37) (0.87) (0.83) (0.71)
Total 0.19 1.19 (0.94) 0.38 0.34 0.76 0.18 (0.53) 166
 (0.57) (0.71) (0.75) (0.91)

 Source: 2013 MMES.
 Notes: Mean ethical infraction observations (and standard deviations) shown for most common positions in the
sample. Number of respondents provided in last column. Higher mean values indicate observing infractions frequently.
Based on 166 respondents who provided a current employment position.


evidence of statistically significant differences in observed mishandling or manipulation of
information across municipality size (χ 2 ¼ 11.94, df ¼ 3, p ¼ 0.01). The results provide weaker
evidence that accepting favors through gift-giving differs across municipality size (χ 2 ¼ 7.04,
df ¼ 3, p ¼ 0.07).
 The results provide no support for the second and third hypotheses, which suggests that the
implementation of formal ethics codes is neither tied to municipality population size nor asso-
ciated with levels of observed ethical infractions. The correlation between municipality size

 TABLE 5
 Relationship Between Ethical Infractions and Municipal Population Size

 Spearman Differences across
 correlation categories (χ 2)

Fraud and theft 0.07 1.20
Mishandling/manipulation of confidential information 0.25*** 11.96***
Conflict of interest through gifts 0.26**** 7.04*
Improper use of authority 0.24*** 5.54
Indecent treatment of colleagues, customers, or citizens 0.18** 5.95
Waste and abuse of organizational resources 0.21**** 4.06

 Source: 2013 Missouri Municipal Ethics Survey.
 Notes: Spearman correlations provided in the second column. Higher scores on each ethical infraction scale signify
more observed infractions. In the third column, χ 2chi-square statistics are given, which assess differences in ethical
infraction reporting across municipal population size using a Kruskal-Wallis test. Statistical significance indicates at
what level of certainty the null hypothesis (i.e., that two indicators are independent) can be rejected. *p < 0.10;
**p < 0.05; ***p < 0.01; ****p < 0.001.




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and whether an agency has an ethics code is negligible (ρ ¼ 0.07). Additionally, having an ethics
code did not significantly differ across municipality size. Therefore, when it comes to deciding
whether to incorporate a code of ethics in standard operating procedures overall, agencies are not
likely to be influenced by how many citizens they serve. Furthermore, the results show no
evidence that formal agency codes of ethics made significant differences in observed ethical
infractions. However, agencies that do have an ethics code are more likely to put a strong empha-
sis on ethics training than agencies that do not have an ethics code (χ 2 ¼ 27.71, df ¼ 1, p < 0.001).
 The results provide adequate evidence for the fourth hypothesis, which states that the
implementation of ethics training in an agency will be negatively associated with observed
ethical infractions. However, the evidence is limited. Table 6 provides correlations between
ethical infractions and the emphasis that an agency puts on ethics training. Spearman correla-
tions are once again provided to estimate a linear relationship between ordinal-level variables
and the extent to which ethical infractions significantly differ across ethics training emphasis.
 A stronger emphasis on ethics training is inversely related to the majority of ethical infrac-
tions, with the exception of instances of fraud, theft, waste, and abuse of organizational
resources. While the signs of all correlations are in the expected direction, the effect size is still
moderately small and similar to the effect size of municipality population. However, the results
do show that differences in some observed ethical infractions are statistically significant across
levels of ethics training emphasis. That is, agencies that strongly emphasize ethics through train-
ing have a relatively lower percentage of observed ethical infractions. The results provide the
strongest evidence that mishandling and manipulation of confidential information significantly
differs across ethics training (χ 2 ¼ 11.65, df ¼ 3, p ¼ 0.01). Eighty percent of respondents who
work in agencies that give a strong emphasis to ethics training believe that the inappropriate
use of confidential information never or rarely occurs. In comparison, only 45% of respondents
who work in agencies that give no emphasis to ethics training share the same sentiments.
 The results thus far suggest that ethical infractions are positively related to municipality
population size and negatively related to agency emphasis on ethics training. To further dem-
onstrate that ethics training makes a difference, ethical infractions between training emphasis


 TABLE 6
 Relationship Between Ethical Infractions and Agency Emphasis on Ethics Training

 Spearman Differences across
 correlation categories (χ 2)

Fraud and theft 0.09 1.10
Mishandling/manipulation of confidential information 0.24**** 11.65***
Conflict of interest through gifts 0.23**** 6.48*
Improper use of authority 0.16** 4.31
Indecent treatment of colleagues, customers, or citizens 0.16** 6.65*
Waste and abuse of organizational resources 0.09 0.94

 Source: 2013 Missouri Municipal Ethics Survey.
 Notes: Spearman correlations provided in the second column. Higher scores on each ethical infraction scale signify
more observed infractions. Higher scores on ethics training indicate stronger attention to training. In the third column,
χ 2 statistics are given, which assess differences in ethical infraction reporting across ethics training emphasis using a
Kruskal-Wallis test. Statistical significance indicates at what level of certainty the null hypothesis (i.e., that two
indicators are independent) can be rejected. *p < 0.10; **p < 0.05; ***p < 0.01; ****p < 0.001.




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 MISSOURI MUNICIPAL ETHICS SURVEY 283


levels should remain, even in agencies that serve larger populations. Figure 1 shows the impact
of ethics training on different kinds of ethical infractions across municipality population size.
The y-axis measures ethical infractions, where larger numbers indicate more observed infrac-
tions. Respondents who work in agencies that give no or minimal emphasis to ethics training
are combined into one category (indicated by solid line), and compared to respondents who
work in agencies that give some or strong emphasis to ethics training (indicated by dotted line).
If ethics training makes a difference in observed ethical infractions, then the dotted line should
be consistently lower than the solid line.
 While the evidence is limited, training makes the clearest impact in three kinds of ethical
infractions: carelessness with confidential information; conflict of interest through gifts; and
indecent treatment of colleagues, customers, and citizens. Generally, as population size
increases, people who work in agencies that give at least some emphasis to ethics training have
lower mean ethical infraction scores than those who work in agencies that give little or no
emphasis to ethics training. Yet the results suggest that ethics training makes only a marginal
impact on improper gift-giving and indecent treatment in the largest municipalities. The results
show that the largest impact of training seems to take place in municipalities with 5,000–10,000
people. This may be due to the sample of respondents. Differences in ethical infractions in
larger populations may be an artifact of city managers and administrators who are oriented
toward day-to-day operations of municipal government and are better situated to evaluate the
impact of ethics training on personnel than elected officials.
 Figure 1 also sheds light on the limits of ethics training. There are three cases in which mean
ethical infractions among respondents who work in agencies that emphasize ethics training are
not lower than among respondents who work in agencies that give no or minimal emphasis:
financial gain, improper use of authority, and waste and abuse of organizational resources.




FIGURE 1 The impact of ethics training on ethical infractions. Source: 2013 Missouri Municipal Ethics Survey.
Notes: A solid line indicates no to minimal emphasis on training and a dotted line indicates some to strong emphasis on
training. Emphasis on training indicator originally has four categories, but are reduced to increase respondents in
training categories. Higher values on y-axis reflect more observed ethical infractions.




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284 SIEWERT AND UDANI



Interestingly, these instances are observed in municipalities in the upper-middle tier that has a
large proportion of city managers and administrators. Furthermore, the results also point out that
ethics training makes marginal differences in observed ethical infractions in municipalities with
1,000 or fewer people.


 DISCUSSION

In this study, individual responses regarding observations of ethics infractions and measures are
aggregated to examine the extent to which agencies both emphasize ethics training and have
lower observed ethical infraction rates. Respondents are not asked whether they themselves
participated in ethics training if offered at their agency. Nor are respondents asked whether they
themselves actually engaged in ethical infractions. While the findings show that the impact of
ethics training is limited, sufficient evidence is offered to initially confirm the assumption that,
at least in certain categories, agencies emphasizing ethics training will make their employees
more conscientious regarding the possibility of ethical violations and lead to fewer violations
becoming realities.
 The frequency of observed violations varies greatly across the infraction categories. Some
violations are clearly more rare events than others, which is reflected in the data that are skewed
to the right. For example, 88.1% of participants reported that they never observed financial
gains due to the improper use of confidential information. Only 6% of participants reported that
they either sometimes or often observed personnel improperly using confidential information to
benefit financially. Similar percentages of participants in the “never” category are obtained with
other ethical violations that could either involve criminal charges or are harder to observe, such
as falsification or improper manipulation of financial data (87.5%), vote trading behind closed
doors (78.6%), and accepting improper gifts or favors (73.2%). Not all ethics violations exhibit
a disproportionate percentage of “never” responses. There is a considerably lower percentage of
participants reporting they never observed carelessness with handling confidential information
(27%). Forty-seven percent of participants report they never observed misuses of confidential
information, and less than half of the participants (49.1%) report they never witnessed a hostile
work environment.
 While it is not implausible that the more serious infractions are indeed as rare as the results
indicate, it is clearly also possible that the social desirability bias influenced participants’
reporting of actual ethics violations despite our best efforts to minimize it. This suggests that
the disproportionate percentage of “never” responses could bias the results and lead to an under-
estimate of both observed ethical infractions and the impact of ethics training. Two procedures
are taken to account for this possibility.
 First, correlations are measured excluding respondents who state they never observed ethical
infractions. Ethics training is still significantly correlated with a reduction in mishandling
confidential information ( 0.21, n ¼ 154, p ¼ 0.01) and indecent treatment of others ( 0.20, n
¼ 106, p ¼ 0.04). In this case, the correlation between ethics training and waste and abuse of
organizational resources increases to 0.40; however, this is only based on 26 respondents.
 In order to further address this issue, a grand scale was built composed of the combination of
separate ethical infraction measures. An individual respondent who never observed one parti-
cular category of infraction is still unlikely to never have observed any at all. An aggregate scale




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 MISSOURI MUNICIPAL ETHICS SURVEY 285


would capture more variation of responses to different questions about ethical infractions than
an assessment of each ethical infraction question separately. The results of this analysis show
that the ethical infraction questions form a highly reliable scale, with a Cronbach’s α of 0.76. In
addition, “never” responses only consist of 18.9% of total respondents. The results are consist-
ent with previous findings presented in this article. The scale has a larger and statistically
significant correlation with municipal population size (ρ ¼ 0.33, p < 0.001), while differences
in ethical infractions across municipal population are also statistically significant (χ 2 ¼ 18.76,
df ¼ 3, p < 0.001). The scale has a similar correlation with ethics training (ρ ¼ 0.26,
p < 0.001). Differences are also statistically significant across ethics training emphasis
(χ 2 ¼ 16.00, df ¼ 3, p < 0.001). Yet ethical infractions still do not significantly differ across
agencies that do and do not have formal ethics codes.
 Other data analysis suggests that ethical infractions are influenced by ethics training, regard-
less of whether an agency emphasizes ethics for incoming personnel or on a continual basis. The
Spearman correlation between the two kinds of training is large and statistically significant
(ρ ¼ 0.76, p < 0.001), and the measures form a highly reliable scale (Cronbach’s α ¼ 0.87). When
using continual emphasis on training as an alternative indicator, the results are generally consist-
ent with previous findings on ethical infractions and municipal population size discussed in the
article. Emphasis on ethics training does not significantly differ across municipality size. Yet
ethical infractions do significantly differ across how much agencies emphasize ethics training
both to incoming personnel and on a continual basis. The authors also constructed an “ethics
activity” scale that includes both kinds of training and whether an agency has a formal ethics
code. This scale is also highly reliable (Cronbach’s α ¼ 0.76), and again produces similar results
consistent with previous findings. However, ethics measures do not differ across municipal
population size; agencies with a higher level of ethics training activities have significantly lower
ethical infractions in certain categories than agencies with a lower level of ethics training
activities.


 IMPLICATIONS

The MMES takes an important first step in filling gaps of knowledge regarding ethics mea-
sures and infractions at the municipal level. Perhaps the first lesson is how much work
remains to be done on this subject. However, significant advances have been made which
allow an initial set of policy suggestions for practitioners. A surprising finding, when looking
at municipalities under 10,000 residents, is that, despite the fact that larger municipalities are
associated with higher infraction rates, and despite the fact that the impact (where there is
one) of ethics training is stronger in larger municipalities, larger municipalities are no more
likely to have implemented ethics measures than smaller municipalities. This makes these
municipalities the lowest-hanging fruit with respect to the impact that ethics measure might
have. Leaders in such municipalities (1,000–10,000 residents) have perhaps the strongest case
for reviewing and overhauling their ethics policies.
 Although this research suggests that ethics codes are not sufficient by themselves to directly
reduce ethical infraction rates, codes are important because they establish a basis upon which
a wider ethics program can be built. First, codes, as a set of ethics rules, can illuminate a
minimum standard below which no official or employee should fall. By delineating acceptable




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behavior from unacceptable behavior on even small issues (such as carelessness with
confidential information), they can avoid the small pitfalls. Such pitfalls, when combined with
a cover-up of the initial mistake, can lead to much bigger problems.
 Second, codes can set forth a set of aspirational values and goals that serve to make sense of
the seemingly arbitrary guidelines in the specific rules. For example, suppose a code sets forth a
goal of utmost objectivity and transparency within the purchasing process. This goal can help to
explain why the code prohibits accepting that cup of coffee offered by a potential vendor. This
can change how practitioners perceive rules. Rules are much more likely to inspire compliance
when the reasons for the rule are clearly understood. Otherwise, such rules can appear disheart-
eningly arbitrary.
 Third, this study shows that the presence of a code makes it much more likely that any given
institution will also implement an ethics training regimen. A strong ethics training regimen
makes a difference.
 Perhaps the most important finding of the present work is to confirm that while stronger
emphases on ethics training (as opposed to ethics codes on their own) are correlated with a drop
in infraction rates, the actual breadth of that correlation is much more complicated than previous
studies have indicated. A central feature of the emerging complexity of the relationship between
ethics measures and actual ethics infractions is that ethics measures only seem to be effective
against certain kinds of ethical violations. An encouraging finding is that the strongest effects of
ethics training fall on the kinds of infractions seen most frequently. The strongest negative
correlation is in the category of carelessness with confidential information, which has the lowest
“never” response of all infraction types.
 The two other categories of infraction that showed a statistically significant impact in
response to ethics training were the acceptance of improper gifts or favors and the indecent
treatment of colleagues, both of which can lead to hostile work environments. These results
should inform guidelines regarding the content of ethics training. Specifically, it would seem
to suggest that a strong focus on these areas of infraction could pack the most “bang for the
buck” when it comes to the limited time and resources any institution can commit to ethics
training. This recommendation conforms to the intuition that ethics training is less about
changing people’s moral character, and more about teaching them to avoid inadvertently or
negligently crossing moral boundaries.
 What training may primarily do is point out the possible ethically problematic consequences
of otherwise benign-seeming actions. Practitioners at all levels can come to recognize the ethi-
cal import before taking such actions. Hopefully, this leads to smarter ethical decision-making
overall.
 As an example of this, consider that the acceptance of improper gifts or favors is a practice
easily justified to oneself (especially for those new to the political arena) if the moral hazards
are not clearly delineated. The naive response to an invitation to a cup of coffee might be some-
thing you hear often in the statements of public officials under the ethics spotlight: “This cup of
coffee can’t sway my opinion.” This kind of thinking can be undermined by training that points
out that sitting down for a cup of coffee with a party that has potential business before the munici-
pal government doesn’t just provide you with one more cup of coffee. In fact, it gives that party
the opportunity to frame the issue at hand and make their case with a nonpublic and unchallenged
line of argument, leaving potential opposing parties at a disadvantage. Further, the significance
of even the appearance of impropriety of being seen having a cup of coffee with an interested




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party is something that training can drive home. Similarly, indecent treatment that leads to a
hostile working environment can be impacted by pointing out the legal and practical ramifica-
tions of such behavior in an independent setting, thereby hopefully countering the knee-jerk
emotional responses that are causing the problem.
 The present work has shown that the impact of ethics training can be significant even if it is
only confined to a limited set of infraction categories. However, the impact of the correlation
between ethics training and these infraction categories is potentially even bigger. Larger ethical
problems often arise in response to smaller mistakes, creating difficult dilemmas. For instance,
accidentally allowing word of the current lowest bid in a purchasing process to get out may be
an innocent mistake (papers left where they shouldn’t have been). But this tainting of the
purchasing process can lead to cover-ups, accusations of favoritism, and any number of larger
issues. By avoiding the first small mistake, the larger consequences are also avoided.
 On the other hand, actions motivated by a clear intent to do wrong, such as misusing
confidential information for financial gain, or outright theft and embezzlement, are less likely
to be impacted by training that points out moral boundaries. In these cases, the violator likely
already knows that the ethical lines are there, and is willing to ignore them for independent
gains. However, there are still several lessons to be drawn from pointing out the limited
effectiveness of ethics codes and training with respect to these more serious and less common
infractions.
 The first lesson is that the possibility of such violations needs to be addressed via other
means. Codes and training by themselves, no matter how comprehensive, do not comprise a full
regimen of ethics policies. If perpetrators of such deeds do not respond to training, then the first
means of defense is to keep them out of the ranks. Ethics must be an area of emphasis, and per-
haps most importantly, a consequential metric for decision-makers throughout the hiring and
promotion process. This can serve to weed out bad actors whose less serious, but known, infrac-
tions hint at their willingness to infract more seriously. This is not meant to be an endorsement
of any kind of strict zero-tolerance policy (such inflexible strictures can be more harmful than
helpful). Instead, it is meant to address unfortunately common promotion processes that reward
short-term gains in productivity over ethical considerations.
 Of course, it is impossible to keep all bad actors out of the ranks. This means that co-workers
must be all the more vigilant, and have a clear and unencumbered means of reporting misdeeds.
Especially given the limits of training shown in the present work, the existence of well-
publicized and unencumbered ethics reporting pipelines is crucial. First and foremost, those
reporting a misdeed need a clear sense that they will not suffer retribution for having made
the report, even if the perpetrator is a superior. Such reporting pipelines may take the form
of anonymous hotlines, or simply be comprised of well-trained managers who will guard
against retribution and see that the proper steps are taken in response to such reports.
 This emphasis on the role of managers in the reporting process highlights another important
point regarding the content of ethics training. Ethics training should not only be something that
everyone (not just newcomers or certain positions) receives, but the content of the training
should be tailored to the role of the audience. For example, lower-level employees and officials
need to be alerted to the existence of unencumbered and reliable means of reporting misdeeds,
and managers need to be trained in ensuring that such reporting pipelines work as advertised.
Furthermore, ethics training cannot be a static curriculum. The ethical issues that require
attention are in constant flux. Changing circumstances—including changes in demographics




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and population, institutional structures, available technologies, and public perceptions of
government—all impact the issues that effective ethics training should highlight. Especially,
new Internet technologies provide both a vast new arena of resources for small municipalities
and an equally vast new set of potential pitfalls. Is confidential information shared via open
e-mail exchanges? Are social media interactions poisoning the work atmosphere? If three of
five city council members are taking part in a debate surrounding local issues on Twitter, is that
a meeting subject to open-records laws?
 This last point about possible cyber-infractions underlines an important lesson from the
present work for both practitioners and researchers. The body of knowledge available on the
subject of public ethics can benefit greatly from continuous attention to the wide variety of
ethical infraction types and possibilities in an increasingly complex world. This means that
researchers need to continue to refine the infraction categories and the broad range of possible
contributing factors, a process that necessarily includes input from practitioners who are
encountering new situations and infractions all the time. On the other hand, practitioners need
to refine and optimize reporting methods and make ethics investigations and verdicts available
for researchers, even if only in aggregated form.
 As was pointed out by an anonymous reviewer, it would have been ideal to compare
perceived infraction levels as measured by the MMES survey against some objective measures
of ethics investigations and their outcomes. However, not only are such data very difficult to
come by (due to wide differences in reporting of ethics investigations), but the variations in
descriptions of the violations themselves make them almost impossible to compare across jur-
isdictions. Ameliorating the roadblocks to progress will require ever more cooperation between
practitioners and researchers. This is perhaps the most important lesson for both sides.

 ACKNOWLEDGMENTS

Special thanks to Raymond Deppen, for his tireless efforts on data entry. Thanks also to the
anonymous Public Integrity reviewers for their suggestions.


 FUNDING

Special thanks to the Center for Ethics in Public Life at the University of Missouri St. Louis for
funding and support.


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Fordham Urban Law Journal

Volume 21 Number 1 Article 2


1993

Keeping the Faith: A Model Local Ethics Law - Content and
Commentary
Mark Davies
Fordham University School of Law, New York Law School




Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj

 Part of the Legal Ethics and Professional Responsibility Commons


Recommended Citation
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L.J. 61 (1993).
Available at: https://ir.lawnet.fordham.edu/ulj/vol21/iss1/2


This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and
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Keeping the Faith: A Model Local Ethics Law - Content and Commentary

Cover Page Footnote
Mark Davies is the former Executive Director of the New York State Temporary State Commission on
Local Government Ethics and the former Deputy Counsel to the New York State Commission on
Government Integrity. He is currently a practicing attorney in Tarrytown, New York, and an Adjunct
Professor of Law at Fordham University School of Law and New York Law School.




 This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol21/iss1/2




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KEEPING THE FAITH: A MODEL LOCAL
ETHICS LAW-CONTENT AND
COMMENTARY

Mark Daviest


 I. Introduction
  The model local ethics law and accompanying commentary set
forth in this Article reflect the work of the New York State Tempo-
rary State Commission on Local Government Ethics. From 1990
through 1992, that agency was charged with enforcing the 1987
Ethics in Government Act, with aiding municipalities in addressing
their ethics concerns, and with proposing new ethics legislation.'
 Dozens of investigations by the Temporary State Commission,
during its three-year life, revealed a broad range of ethical
problems in municipalities throughout New York State. With ade-
quate staff and funding, the Commission could have conducted
dozens if not hundreds of additional investigations-not because
municipal officials often commit unethical acts, but because they
are perceived to have committed unethical acts. In the Commis-
sion's experience, a great chasm exists between the actual and per-
ceived integrity of local government officials. Virtually none of the
actions of officials investigated by the Commission violated current
penal or ethics laws. Yet the public, perhaps justifiably, viewed
those unregulated actions as improper.
  The Commission's determination that corrupt or illegal actions
by officials occur with extreme infrequency at the local level is
good news. The bad news is this: local government officials lack
desperately needed counsel as to what behavior is ethically accept-
able and what is not.

 t Mark Davies is the former Executive Director of the New York State Tempo-
rary State Commission on Local Government Ethics and the former Deputy Counsel
to the New York State Commission on Government Integrity. He is currently a prac-
ticing attorney in Tarrytown, New York, and an Adjunct Professor of Law at Fordham
University School of Law and New York Law School.
 1. The 1987 Ethics in Government Act, 1987 N.Y. LAws 813, primarily regulates
state officials. The provisions governing the Commission were codified in § 813 of the
New York General Municipal Law. N.Y. GEN. MUN. LAW § 813 (McKinney 1986).
See generally Temporary State Comm'n on Local Gov't Integrity, Final Report, 21
FORDHAM URB. L.J. 1 (1993).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 As discussed at length in the Commission's Final Report 2 and in
its report entitled "In Search of a Wise Law: Municipal Ethics Law
Reform,"' current New York State ethical standards for municipal
officials are disgracefully inadequate. Most glaringly, they do not
even contain a basic code of ethics to guide officials. As a result,
neither officials nor citizens know what the rules are; the all-too-
common result being that officials often face criticism for engaging
in conduct that is permitted under current law. This appalling state
of affairs, which exists not only in New York but in many other
states as well, must be remedied with all deliberate speed.
 The Commission and its Local Government Advisory Board,
which was composed of representatives of the New York State As-
sociation of Counties, Association of Towns, and Conference of
Mayors, proposed a state law to replace the hodgepodge of current
ethics laws that govern municipal officials. 4 That bill was intro-
duced in the New York State legislature in 1991 as Assembly Bill
8637 and Senate Bill 6157. It was not reported out of committee.

 II. The Need for Local Ethics Laws
 Absent a strong state ethics law for municipal officials, local gov-
ernments must employ their home rule powers to enact a compre-
hensive, local ethics law regulating the conduct of their officials.
That a crushing need for a such a law exists is demonstrated by the
Commission's investigations, which revealed the following in-
 5
stances of questionable activity:
Appearances and representation
 A town attorney appeared before the town planning
 board on behalf of private clients;
 A town board member represented developers before
 the town planning board;
Compatibility of public office
 A municipal official held two, allegedly incompatible
 municipal offices;

 2. Temporary State Comm'n on Local Gov't Integrity, supra note 1, at 1-62.
 3. The report is unpublished and is on file with the Fordham Urban Law Journal.
 4. The current state ethics law is set forth in article 18 of the New York State
General Municipal Law. N.Y. GEN. MUN. LAW §§ 801-813 (McKinney 1986 & Supp.
1993).
 5. See Temporary State Comm'n on LocalGov't Ethics, Final Report 4-6 (unpub-
lished sections of the Report, on file with the Fordham Urban Law Journal).




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19931 MODEL LOCAL ETHICS LAW

Ineffective enforcement
 Town officials ignored, with impunity, the opinion of
 the Attorney General's office that a town planning-board
 member should refrain from voting on a matter in which
 he had an interest;
Using public office for private gain
 A city housing services commission bought a city offi-
 cial's house at an allegedly inflated price;
 Municipal officials used municipal property for private
 purposes;
 Town planning board members .engaged in real estate
 trade iri the town;
 A town assessor acted as a private realtor and devel-
 oper in the town;
 A village mayor voted to rezone his son-in-law's prop-
 erty to permit a gas station;
 A town supervisor voted to award the town insurance
 contract to his brother-in-law;
 A school board trustee voted to raise the salary of his
 sister, the deputy board clerk;
 A town supervisor allegedly contracted with his father's
 bus company;
 A village trustee voted to grant permits to clients of her
 private consulting business;
 Zoning board members voted to grant variances to cli-
 ents of their private businesses;
 A city code-enforcement officer reviewed code compli-
 ance of his supervisor's private business;
 An industrial development authority (IDA) hired bond
 counsel who had an interest in an IDA project;
 A village board permitted a village golf superintendent
 to open a private pro shop on the village golf course;
 A town code-enforcement officer issued a building per-
 mit to himself;
 A town supervisor refused to correct a drainage prob-
 lem until the affected citizen took action that benefitted
 the supervisor's mother;
Politicalsolicitation
 A city mayor solicited campaign contributions from city
 employees;




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 A town commissioner of public works solicited cam-
 paign contributions from vendors on the town vendor list;
 A Democratic city mayor awarded city contracts to
 campaign contributors;
 Republican county officials awarded contracts to con-
 tributors of the county Republican committee;
Improper influence of officials by private persons
 A private construction firm that needed town permits
 sought to hire the town supervisor;
Revolving door
 A former town assessor appeared before the town's
 tax-grievance committee on behalf of persons whose
 property he had assessed;
 An IDA chair resigned to become the IDA's outside
 counsel, earning substantial fees;
Inflexibility of current law
 A town board faced the dilemma of either contracting
 with a board member for recycling services, in violation of
 Article 18,6 or expending far more town money to con-
 tract with a vendor in another state;
 A village board was prevented from placing a service
 awards program before the voters because board mem-
 bers who were volunteer firefighters felt constrained to
 recuse themselves.
 Virtually none of the above actions are prohibited by current
New York State law. Yet most citizens would regard them as im-
proper. The state legislature having refused to enact a state ethics
law for local government, each municipality must adopt its own
ethics standards. Based on the bill jointly proposed by the Com-
mission and its Local Government Advisory Board, the model lo-
cal ethics law set forth below should assist municipalities in
meeting that challenge.

  Ill. A Model Local Ethics Law: Content and Commentary

Scope.
 The model local law is intended for use in New York State coun-
ties, cities, towns, and villages. However, with minimal changes, it

 6. N.Y. GEN. MUN. LAW §§ 801-13 (McKinney 1986 & Supp. 1993).




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19931 MODEL LOCAL ETHICS LAW

may be used in other municipalities, such as school districts. See,
in particular, the Code of Ethics for the Buffalo Board of Educa-
tion.7 With modification to comply with state law requirements,
the model law may also be used in municipalities in other states.

Authority to Enact.
 Section 806(1)(a) of the New York General Municipal Law re-
quires all counties, cities, towns, villages, and school districts (and
permits all other municipalities) to
 "adopt a code of ethics setting forth for the guidance of its of-
 ficers and employees the standards of conduct reasonably ex-
 pected of them. Such code shall provide standards for officers
 and employees with respect to disclosure of interest in legisla-
 tion before the local governing body, holding of investments in
 conflict with official duties, private employment in conflict with
 official duties, future employment and such other standards re-
 lating to the conduct of officers and employees as may be
 deemed advisable. Such codes may regulate or prescribe con-
 duct which is not expressly prohibited by this article [18] but
 may not authorize conduct otherwise prohibited. Such codes
 may provide for the prohibition of conduct or disclosure of in-
 formation and the classification of employees or officers."'
 Sections 806(1)(b) and 811 of the General Municipal Law specif-
ically authorize municipalities to adopt a form of annual statement
of financial disclosure. Financial disclosure is mandatory in coun-
ties, cities, towns, and villages with a population of 50,000 or more.9
 In light of a recent New York State Court of Appeals decision, 10
municipalities should exercise caution in unilaterally imposing eth-
ics requirements on their unionized employees, as ethics require-
ments may be found to be mandatory subjects of bargaining and,
thus, not necessarily capable of unilateral imposition.

 MODEL LOCAL ETHICS LAW
Section 1. Title.
  [If desired, assign a title to the local law, e.g.: "This local law
shall be known and may be cited as the "Ethics Law of the
[County, City, Town, or Village] of -. "I
 7. Unpublished manuscript on file with the Fordham Urban Law JournaL
 8. N.Y. GEN. MUN. LAW § 806(1)(a) (McKinney 1986).
 9. N.Y. GEN. MUN. LAW §§ 810(1), 811(2), 812(1)(a) (McKinney Supp. 1993).
 10. Board of Educ. v. New York State Pub. Employment Relations Bd., 75 N.Y.2d
660, 554 N.E.2d 1247, 555 N.Y.S.2d 659 (1990).




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66 FORDHAM URBAN LAW JOURNAL [Vol. XXI

Section 2. Purpose.
  The purposes of this local law are:
 (a) To establish high standards of ethical conduct for of-
 ficers and employees of the [County, City, Town, or
 Village];
 (b) To afford officers and employees of the [County,
 City, Town, or Village] clear guidance on such standards;
 (c) To promote public confidence in the integrity of the
 governance and administration of the [County, City,
 Town, or Village] and its agencies and administrative
 offices;
 (d) By requiring public disclosure of financial interests
 that may influence or be perceived to influence the ac-
 tions of [County, City, Town, or Village] officers and em-
 ployees, to facilitate consideration of potential ethical
 problems before they arise, minimize unwarranted suspi-
 cion, and enhance the accountability of government to the
 people; and
 (e) To provide for the fair and effective administration
 of this local law.
 This local law is enacted pursuant to section 806 of the General
Municipal Law of the State of New York and section 10 of the Mu-
nicipal Home Rule Law and is not intended to authorize any con-
duct prohibited by Article 18 of the General Municipal Law. This
local law also supplements other provisions of law regulating ethics
in local government, such as section 107 of the Civil Service Law of
the State of New York.

Section 2. Comment.
 While the vast majority of municipal officials are honest and
zealous, being honest is not enough. Appearances and public per-
ception play an enormously important role in the effectiveness of
officials and in the well-being of their communities.
 However, ethics laws are not an academic exercise. Their pur-
pose lies not in filing forms or in prohibiting officials' activity
merely for prohibition's sake. To the contrary, proposals for ethics
law reform must never be divorced from their impact upon the
lives and effectiveness of the officials themselves.
 The point of ethics laws for municipal officials is to improve both
the perception and the reality of integrity in local government and
to encourage, not discourage, citizens from participating in that




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1993] MODEL LOCAL ETHICS LAW

government. If an ethics law fails in those goals, it fails in every-
thing. This model local ethics law seeks to fulfill those goals. At
the same time, it must comply with, and incorporate, the often con-
fusing requirements of Article 18 of the General Municipal Law.
 Apart from Article 18, other New York State statutes, such as
Civil Service Law section 107, regulate ethics in local govern-
ment. 11 New York State common law also places certain restric-
 12
tions on self-dealing by public officials.
 This model local ethics law primarily addresses conflicts between
the public and private interests of municipal officials, and does not
seek to regulate the compatibility of two public offices. The Attor-
ney General, and to a lesser extent the Comptroller's office, have
developed an extensive body of opinions on compatibility of public
office,' 3 based on various statutory provisions.' 4

Section 3. Supersession of General Municipal Law § 808;
 Repeal of Existing [County, City, Town, or
 Village] Ethics Laws.
 To the extent this [chapter] is inconsistent with the provisions of
section 808 of the General Municipal Law, this [chapter] shall su-
persede those provisions. [Provide for the repeal of any existing
local laws or ordinances governing ethics in the municipality that
are rendered obsolete by this local law.]

Section 3. Comment.
  As discussed below, both the Attorney General's office and the
Commission have taken the position that municipalities' home rule
powers permit them, by local law, to vary the provisions of section
808 of the General Municipal Law relating to the establishment

 11. N.Y. Civ. SER. LAW § 107 (McKinney Supp. 1993):
 12. See, e.g., Clarke v. Town of Russia, 283 N.Y. 272, 28 N.E.2d 833 (1940); Smith
v. City of Albany, 61 N.Y. 444 (1875); People ex reL Schenectady Illuminating Co. v.
Board of Supervisors, 166 A.D. 758, 151 N.Y.S. 1012 (App. Div. 1915). Cf N.Y.
TOWN LAW § 271(3) (McKinney Supp. 1994); N.Y. VILLAGE LAW § 7-718(3) (McKin-
ney Supp. 1994).
 13. See, e.g., 1943 Op. Att'y Gen. 94; 1946 Op. Att'y Gen. 111; 7 Ops. St. Compt.
15 (1951).
 14. See, e.g., N.Y. VILLAGE LAW § 3-300 (McKinney Supp. 1993); N.Y. SECOND
CLASS CrrIEs LAW § 19 (McKinney Supp. 1993); N.Y. TOWN LAW § 20 (McKinney
1990 & Supp. 1993); N.Y. CourNY LAW § 411 (McKinney 1991); N.Y. GEN. CrrY
LAW § 3 (McKinney 1989); N.Y. GEN. MUN. LAW §§ 239-b, 243, 553(4), 801, 856(4)
(McKinney 1986); see also Strati v. Balancia, N.Y. LJ., May 23, 1991, at 28, col. 2
(Sup. Ct., Westchester Co. 1991) (upholding local law prohibiting town planning
board members from running for town supervisor or town board).




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68 FORDHAM URBAN LAW JOURNAL [Vol. XXI

and membership of ethics boards. However, when adopting a local
law changing or superseding any provision of a state statute or a
prior local law or ordinance, the legislative body must specify the
chapter or local law or ordinance (and the number and year of en-
actment, section, subsection, or subdivision) that the legislative
body intends to change or supersede, although the failure to do so
 15
does not affect the validity of the local law.

Section 4. Ethics Law.

  The following sections, numbered [100 through 218] are added to
the [Unified Code of the County, City, Town, or Village of ]:

Section 4. Comment.

 An ethics law rests upon a triad of provisions: an understanda-
ble and comprehensive Code of Ethics, sensible disclosure, and a
reasonable enforcement mechanism. Removal of any of those
three legs topples the entire ethics structure.
 Furthermore, an unintelligible ethics law cannot be obeyed or
enforced. This model law, therefore, places heavy emphasis upon
easily understandable organization, contents, and word usage, par-
ticularly in those provisions that directly affect the activities of offi-
cials. An ethics law must be user friendly. Otherwise, it fails in its
essential purpose of providing guidance to officials and confidence
to citizens.
 For that reason, this model law is divided into two parts. The
first part (sections 100-113) contains the provisions directly con-
cerning the conduct of municipal officials. The second part (sec-
tions 201-218) contains the provisions for administering the ethics
law. Except for municipal attorneys and ethics board members, of-
ficials would not often have occasion to consult the second part;
the provisions of concern to officials are therefore grouped into the
first fourteen sections of the model law.




 15. N.Y. MUN. HOME RULE LAW § 22 (McKinney 1969).




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19931 MODEL LOCAL ETHICS LAW

 ETHICS LAW
 PART A: SUBSTANTIVE PROVISIONS
§ 100. Code of Ethics for [County, City, Town, or Village]
 Officers and Employees.
1. General prohibition.
 A [County, City, Town, or Village] officer or employee shall not
use his or her official position or office, or take or fail to take any
action, in a manner which he or she knows or has reason to know
may result in a personal financial benefit for any of the following
persons:
 (a) the [County, City, Town, or Village] officer or employee;
 (b) his or her outside employer or business;
 (c) a member of his or her household;
 (d) a customer or client;
 (e) a relative; or
 (f) a person from whom the officer or employee has received
election campaign contributions of more than $1000 in the aggre-
gate during the past twelve months.

2. Recusal.
  A [County, City, Town, or Village] officer or employee shall
promptly recuse himself or herself from acting on a matter before
the [County, City, Town, or Village] when acting on the matter, or
failing to act on the matter, may financially benefit any of the per-
sons listed in subdivision 1 of this section.

3. Gifts.
  A [County, City, Town, or Village] officer or employee shall not
solicit anything of value from any person who has received or
sought a financial benefit from the [County, City, Town, or Vil-
lage], nor accept anything of value from any person who the
[County, City, Town, or Village] officer or employee knows or has
reason to know has received or sought a financial benefit from the
[County, City, Town, or Village] within the previous twenty-four
months.

4.  Representation.
  A [County, City, Town, or Village] officer or employee shall not
represent any other person in any matter that person has before
the [County, City, Town, or Village] nor represent any other per-




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

son in any matter against the interests of the [County, City, Town,
or Village].

5. Appearances.
  A [County, City, Town, or Village] officer or employee shall not
appear before any agency of the [County, City, Town, or Village],
except on his or her own behalf or on behalf of the [County, City,
Town, or Village].

6. Confidential information.
  [County, City, Town, or Village] officers and employees and for-
mer [County, City, Town, or Village] officers and employees shall
not disclose any confidential information or use it to further any-
one's personal interests.

7. Political solicitation.
  A [County, City, Town, or Village] officer or employee shall not
knowingly request or knowingly authorize anyone else to request
any subordinate of the officer or employee to participate in an
election campaign or contribute to a political committee.

8.  Revolving door.
  A [County, City, Town, or Village] officer or employee shall not
appear or practice before the [County, City, Town, or Village], ex-
cept on his or her own behalf, or receive compensation for working
on any matter before the [County, City, Town, or Village], for a
period of one year after the termination of his or her [County, City,
Town, or Village] service or employment; however, the bar shall be
permanent as to particular matters on which the [County, City,
Town, or Village] officer or employee personally worked while in
[County, City, Town, or Village] service.

9. Avoidance of conflicts.
 [County, City, Town, or Village] officers and employees shall not
knowingly acquire, solicit, negotiate for, or accept any interest, em-
ployment, or other thing of value which would put them in viola-
tion of this Code of Ethics.

10. Inducement of others.
  A [County, City, Town, or Village] officer or employee shall not
induce or aid another officer or employee of the [County, City,




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19931 MODEL LOCAL ETHICS LAW

Town, or Village] to violate any of the provisions of this Code of
Ethics.

§ 100.-Comment.
 A Code of Ethics is the heart and soul of any ethics law. The
Code must be easy for lay persons to understand and apply be-
cause, as noted above, its primary purpose is to provide guidance
to officials and citizens.
 The provisions of the Code of Ethics must be read together with
the exclusions in section 102 and the definitions in section 105.
 Some municipalities may wish to include in their Code of Ethics
certain additional provisions, such as a ban on all, or designated,
officials holding offices in a political party or committee (a so-
called "two hats" provision). Such a provision might read as
follows:
 No [County, City, Town, or Village] officer or employee may be
 a member of a party committee, constituted committee, or duly
 constituted subcommittee of a county committee.
"Party committee," "constituted committee," and "duly consti-
tuted subcommittee of a county committee" are defined in section
14-100 of the Election Law and include, for example, state, county,
city, town, and village political party committees. 16 Some munici-
palities may wish to limit the two-hats provision to certain officials
(e.g., policymakers) or to exclude certain officials (e.g., elected
officials).' 7

§ 100(1).
 This provision is the centerpiece of the Code of Ethics. It pro-
hibits the official from taking any action that might financially ben-
efit any of the listed persons. Sometimes inaction personally
benefits an official or his or her close associates-for example,
when a code enforcement officer fails to cite his or her brother for
a zoning violation. For that reason, the provision also prohibits the
official from refraining from acting. In either case, the official must
recuse himself or herself pursuant to section 100(2).
 A municipality may wish to add additional categories of associ-
ates or relatives to the list, such as brothers-in-law and sisters-in-

 16. See N.Y. ELEC. LAW § 14-100 (McKinney Supp. 1993).
 17. See, e.g., NEw YORK, N.Y., CHARTER § 2604(b)(15). The New York Court of
Appeals upheld § 2604(b)(15) in Golden v. Clark, 76 N.Y.2d 618, 564 N.E.2d 611,563
N.Y.S.2d 1 (1990).




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law of the official, business associates of the official, employers of
designated relatives of the official, partners of the official, creditors
of the official, or persons from whom the official has received a
substantial gift within the previous twelve months. With respect to
the restriction on acting to benefit a campaign contributor (section
100(1)(f)), a municipality may wish to include contributions
through a party committee or noncandidate political committee
and may wish to expand the twelve month period to an election
cycle. The municipality may also wish to adjust the $1,000 thresh-
old in section 100(1)(f) to an amount appropriate in the particular
community.

§ 100(2).
 This provision requires that the official entirely refrain from par-
ticipating in the matter. Mere abstention from voting on the mat-
ter is not sufficient. The official may not even discuss the matter
with other officials. To emphasize the official's duty to divorce
himself or herself completely from the matter, some municipalities
may wish to add the phrase "formally or informally" between
"from" and "acting."

§ 100(3).
 General Municipal Law § 805-a(1)(a) provides that:
 No municipal 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, ser-
 vice, loan, travel, entertainment, hospitality, thing or promise, or
 in any other form, under circumstances in which it could reason-
 ably be inferred that the gift was intended to influence him, or
 could reasonably be expected to influence him, in the perform-
 ance of his official duties or was intended as a reward for any
 official action on his part ....
  At least one trial court has held that the above provision is uncon-
stitutionally vague. 19
 Any conduct prohibited by section 805-a(1)(a) would also be
prohibited by the gift provision in the model law, even though sec-
tion 805-a(1)(a), unlike the model law, contains no exemptions for
gifts from parents, spouses, and children. 20 Such exemptions are
implicit in the "reasonably be inferred" and "reasonably be ex-
 18. N.Y. GEN. MUN. LAW § 805-a(1)(a) (McKinney Supp. 1993).
 19. People v. Moore, 85 Misc. 2d 4, 377 N.Y.S.2d 1005 (Fulton County Ct. 1975).
 20. N.Y. GEN. MUN. LAW § 805-a(1)(a) (McKinney Supp. 1993).




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1993] MODEL LOCAL ETHICS LAW

pected" language of section 805-a(1)(a). However, currently, no
court has addressed this issue.
 The gifts provision in the model law prohibits acceptance of gifts
only when the official "knows or has reason to know" the giver has
received or sought a financial benefit from the municipality. The
official is thus protected from inadvertently violating the law by
accepting a gift from someone who the official could not have
known did business with the municipality. Moreover, section 102
excludes awards from charitable organizations, gifts from parents,
spouses, and children, gifts having an aggregate value of seventy-
five dollars or less during the year, payments for performing cer-
tain wedding ceremonies, and gifts accepted on behalf of the mu-
nicipality and turned over to the municipality, e.g., the mayor's
acceptance of a gift on behalf of his or her city from the mayor of a
sister city.

§§ 100(4) & 100(5).
 Section 805-a(1)(c) of the General Municipal Law prohibits offi-
cials from receiving or agreeing to receive compensation for serv-
ices to be rendered in relation to any matter before the official's
own agency or before an agency over which the official has jurisdic-
tion or to which he or she has the power to appoint someone.2 '
Section 805-a(1)(d) of the General Municipal Law prohibits offi-
cials from receiving or agreeing to receive compensation for serv-
ices to be rendered in relation to any matter before any agency of
the municipality if the compensation is contingent upon any action
by the agency with respect to the matter.2 2 The prohibition on con-
tingent payment, however, does not prohibit the fixing of a non-
contingent fee, at any time, based on the reasonable value of the
services rendered.
 The above provisions fail to address many potential conflicts of
interest. For example, although the provisions prohibit a town zon-
ing board member from being paid to appear on behalf of a private
client before the town zoning board, they do not prohibit the town
attorney from appearing before the zoning board on behalf of a
private client, nor would they prohibit the chair of the planning
board, or even the code enforcement officer, from appearing
before the zoning board for a private client. Sections 100(4) and
(5) of the model law address such conflicts and completely incorpo-

  21. N.Y. GEN. MUN. LAW § 805-a(1)(c) (McKinney Supp. 1993).
  22. Id. § 805-a(l)(d).




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74 FORDHAM URBAN LAW JOURNAL [Vol. XXI

rate the restrictions contained in sections 805-a(1)(c) and (d) of the
General Municipal Law.
 With respect to sections 100(4) and 100(5) of the model law, one
might argue that any conduct prohibited by subdivision 5 (appear-
ances) is also prohibited by subdivision 4 (representation). How-
ever, because the restriction on appearances is probably easier to
understand and enforce than the restriction on representation,
both provisions should be included in the Code of Ethics.
 Some municipalities may find the municipal-wide bar on repre-
sentations and appearances too broad and may, therefore, wish to
restrict the bar to the official's own agency. However, such a nar-
row bar would, for example, permit the town code-enforcement of-
ficer or the town attorney to represent private clients before the
town planning board because those officers are not employees of
that agency. The broader prohibition or, at the very least, a prohi-
bition that would prevent such abuses is therefore preferable.
 In addition, some municipalities may wish to preclude not only
representation but also assistance or legal assistance, with an exclu-
sion for representation or assistance in the performance of the of-
ficer's or employee's official duties. The model law's exclusion for
actions authorized by state or federal law (section 102(1)) would
permit an official to represent or assist persons in an official capac-
ity. Sections 102(6) and 102(7) specifically exclude the receipt of
municipal services or benefits generally available to residents of
the municipality and, in matters of public advocacy, the representa-
tion of constituents by elected officials without compensation.
 The bar on representation and appearances does not prohibit an
official from participating in the fee that his or her business associ-
ate receives from such appearances or representation. Further-
more, the only municipal agencies before which the official's
business associate may not appear are the official's own agency and
agencies over which the official exercises control (section 106).

§ 100(6).
  This provision is broader than General Municipal Law section
805-a(1)(b) because it applies to all confidential information, how-
ever acquired, and prohibits use of confidential information to fur-
ther anyone's personal interests.2 3 Confidential information may

 23. 'N.Y. GEN. MUN. LAW § 805-a(1)(b) (McKinney Supp. 1993) ("No municipal
officer or employee shall... disclose confidential information acquired by him in the
course of his official duties or use such information to further his personal interests.")




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1993] MODEL LOCAL ETHICS LAW

be disclosed as permitted by law (section 102(1)), including the
state whistleblower law.24

§ 100(7).
 Political solicitation of subordinates by an official fosters the ap-
pearance, if not the reality, of coercion. The Code of Ethics there-
fore bars such solicitation, except from political appointees (see
definition of "subordinate" in section 105(11)).
 Inclusion of the word "knowingly" means that neither an official
nor his or her campaign committee need cull the names of munici-
pal officials from voter registration lists. However, a targeted mail-
ing to municipal officials would be prohibited.
 Some municipalities may wish to add a bar on soliciting from
persons who have sought or received a financial benefit from the
municipality within the previous twenty-four months. Municipali-
ties may also wish to consider whether they should extend the bar
of section 100(7) to nonincumbent candidates because appointed
officials may fear reprisal if they refuse to, aid the campaign of a
non-incumbent who later wins the election.
 Section 100(7) is not a little Hatch Act 25 and does not restrict
voluntary political contributions or political activity by any offi-
cial.26 The section merely prohibits an official from putting the
political bite on a subordinate.27
§ 100(8).
  Article 18 of the General Municipal Law contains no restrictions
upon the activities of former municipal officials. Thus, a village
planning board member may today vote to approve a major devel-
opment and tomorrow go to work for the developer and even ap-
pear before the planning board on that very same project.
  The revolving door provision in the model law restricts only the8
former official; it does not restrict his or her business associates.
Thus, for example, a former mayor could not work on matters for
or before his or her municipality for one year, but all of the
mayor's colleagues in his or her new firm could. Section 100(8),
 24. N.Y. CIV. SERV. LAW § 75-b (McKinney Supp. 1993).
 25. 5 U.S.C. §§ 1501-1508 (1977 & Supp. 1993).
 26. Cf N.Y. LAB. LAW § 201-d (McKinney Supp. 1994); N.Y. CIv. SERV. LAW
§ 27 (McKinney 1987).
 27. See also N.Y. CIV. SERV. LAW § 107 (McKinney Supp. 1993).
 28. See generally Forti v. New York State Ethics Comm'n, 554 N.E.2d 876 (N.Y.
1990) (upholding restrictions in section 73 of the Public Officers Law on former state
executive branch employees appearing before their former agencies).




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76 FORDHAM URBAN LAW JOURNAL [Vol. XXI

however, does prohibit the former official from profiting from his
or her associates' business with the municipality. 9
 Moreover, section 100(8) only restricts appearances by the for-
mer official on behalf of customers or clients. The official may ap-
pear on his or her own behalf, for example, to seek a zoning
variance for his or her own home. In addition, the revolving door
provision does not apply to officials who performed only ministe-
rial duties while in municipal service (section 102(8)).
 Under section 100(8), a business whose owner and sole em-
ployee is a former official would be effectively barred for one year
from appearing before the municipality on behalf of customers or
clients. However, if that bar creates a particular hardship, the eth-
ics board could grant a waiver under section 211.
 The revolving door bar extends for only one year, a period that is
sufficiently long for the vast majority of municipalities. Those mu-
nicipalities that need a longer bar may adopt it, but should bear in
mind that the adoption of lengthy bars tends to discourage recruit-
ment of qualified officials. Under the model law a lifetime bar
applies to matters on which the former official personally worked
while in municipal service. "Personally worked" means the official
actually worked on the matter, not that he or she supervised a de-
partment that worked on the matter.
 This revolving door provision is a municipal-wide bar. Some mu-
nicipalities may wish to limit the bar to the former official's partic-
ular agency. For the reasons set forth in the comments to section
100(4) above, such a narrow bar is not recommended.
 Section 100(8) would prohibit the municipality from hiring a for-
mer official as an independent contractor. Some municipalities
may, therefore, wish to include the phrase "or on behalf of the
[County, City, Town, or Village]" after the phrase "except on his or
her own behalf." However, such an exemption would permit
sweetheart deals between the municipality and a former official,
who would normally have the edge in competing with vendors
lacking his or her municipal contacts.




 29. To that extent, this model local ethics law restricts former officials more than
current officials. That apparent anomaly, however, makes sense when one notes that
former officials are subject only to the revolving door and confidential information
provisions while current officials are subject to the entire panoply of restrictions in the
Code of Ethics.




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1993] MODEL LOCAL ETHICS LAW

§ 100(9).
  One might argue that this provision does not regulate any con-
duct not otherwise regulated by the other provisions of the Code of
Ethics. However, an avoidance of conflicts provision is common to
many municipal codes of ethics around the country and provides
an additional arrow in the Code of Ethics quiver.
  Municipalities finding the phrase "put them in violation" too col-
loquial could change it to read "result in a violation."

§ 100(10).
  The model law prohibits a municipal official from inducing or
aiding another municipal official to violate the Code of Ethics. For
example, if a town board member and a member of the town zon-
ing board jointly own a certain piece of property, the town board
member could not ask the zoning board member to vote for a vari-
ance for the property.

§ 101. Transactional Disclosure.
 1. Whenever a [County, City, Town, or Village] officer or em-
ployee is required to recuse himself or herself under the Code of
Ethics set forth in section 100 of this [chapter], he or she
 (i) shall immediately refrain from participating further
 in the matter,
 (ii) shall promptly inform his or her superior, if any,
 and
 (iii) shall promptly file with the [County, City, Town, or
 Village] 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.
 2. An officer or employee shall not be required to file a disclo-
sure statement pursuant to this section if he or she, with respect to
the same matter, has filed with the [governing body of the county,
city, town, or village] a disclosure statement complying with re-
quirements of section 104 of this [chapter].

§ 101.-Comment.
  Far more important than blunderbuss annual financial disclo-
sure, transactional disclosure provides pinpoint disclosure when a
conflict actually arises and should thus constitute the primary'focus
of disclosure in any ethics scheme.




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 Some municipalities may wish to replace "nature and extent of
the prohibited action" with "reason for recusal," a less precise
phrase.
 Section 803 of the General Municipal Law, which is incorporated
in section 104(2) of the model law, requires disclosure of certain
interests in contracts.3 0 To eliminate an official's need to file sepa-
rate disclosure statements for the same transaction under both sec-
tion 104 and section 101, section 101(2) exempts an official from
having to file disclosure statements for the same transaction under
both section 104 and section 101.

§ 102. Exclusions from the Code of Ethics and from
 Transactional Disclosure.
 The provisions of sections 100 and 101 of this [chapter] shall not
prohibit, or require recusal or transactional disclosure as a result
of:
 1. An action specifically, authorized by statute, rule, or regula-
tion of the state of New York or of the United States.
 2. A ministerial act.
 3. Gifts
 (a) received by the [County, City, Town, or Village] of-
 ficer or employee from his or her parent, spouse, or child;
 or
 (b) having an aggregate value of $75 or less during any
 twelve-month period; or
 (c) accepted on behalf of the [County, City, Town, or
 Village] and transferred to the [County, City, Town, or
 Village].
 4. Gifts or benefits having a value of $50 or less that are re-
ceived by a [County, City, Town, or Village] officer or employee
listed in section 11 of the Domestic Relations Law of the State of
New York for the solemnization of a marriage by that officer or
employee at a place other than his or her normal public place of
business or at a time other than his or her normal hours of
business.
 5. Awards from charitable organizations.
 6. Receipt of [County, City, Town, or Village] services or bene-
fits, or use of [County, City, Town, or Village] facilities, that are
generally available on the same terms and conditions to residents
or a class of residents in the [County, City, Town, or Village].
 30. N.Y. GEN. MUN. LAW § 803 (McKinney 1986).




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1993] MODEL LOCAL ETHICS LAW

  7. Representation of constituents by elected officials without
compensation in matters of public advocacy.
  8. [County, City, Town, or Village] officers or employees ap-
pearing or practicing before the [County, City, Town, or Village] or
receiving compensation for working on a matter before the
[County, City, Town, or Village] after termination of their [County,
City, Town, or Village] service or employment where they per-
formed only ministerial acts while working for the [County, City,
Town, or Village].

§ 102.-Comment.
§ 102(2).
  The village clerk may, for example, issue a fishing license to her
brother.

§ 102(3).
 Some municipalities may also wish to exclude gifts from siblings
because the model law would prohibit the sibling of an official
from giving the official a wedding gift exceeding seventy-five dol-
lars if the sibling sought or received a financial benefit from the
municipality within the previous twenty-four months. However,
such a situation would rarely occur. Moreover, where the situation
did arise, the sibling could apply for a waiver from the ethics board.
 In view of the seventy-five dollar exclusion, little need would
seem to exist for excluding attendance at a public social event, or
attendance at a private social event (such as a dinner party) arising
from normal hospitality with a value not exceeding, for example,
$100. Such exclusions inject unnecessary ambiguity into a provi-
sion that requires a bright line rule.
§102(4).
  This provision tracks the exclusion in General Municipal Law
section 805-b, which also defines a town or village judge's "normal
hours of business" as "those hours only which are officially sched-
 31
uled by the court for the performing of the judicial function.

§ 102 (5).
  Some municipalities may wish to restrict this exclusion some-
what by adding the word "public" before "awards."
 31. N.Y. GEN. MUN. LAW § 805-b (McKinney Supp. 1993).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

§102(6).
 As a resident of the municipality, an official should be able to
receive from the municipality the same services and benefits as any
other resident, provided that the official does not receive any pref-
erential treatment.
§ 102(7).
 Elected officials are elected to serve their constituents. Thus, for
example, when a resident complains to a town board member that
the town highway department blocks the resident's driveway with
snow, the board member must be able to pursue that complaint
with the proper town authorities.
 The phrase "matters of public advocacy" may be replaced by
"proper discharge of official duties," a phrase that appears in Pub-
lic Officers Law section 73(7)(a), which regulates the business ac-
tivities of state employees.32
§ 102(8).
 The revolving door restrictions (section 100(8)) only apply to of-
ficials with some discretionary authority. Employees who perform
only ministerial actions are not subject to those restrictions.

§ 103. Inducement of Violations of the Code of Ethics.
 No person, whether or not a [County, City, Town, or Village]
officer or employee, shall induce or attempt to induce a [County,
City, Town, or Village] officer or employee to violate any of the
provisions of sections 100 or 101 of this [chapter].
§ 103.-Comment.
 Under current state law, absent outright bribery, the occasional
dishonest private citizen or company that induces a municipal offi-
cial to violate ethics laws runs no risk of penalty. For example,
hoping to keep a village's business, a bank might give a personal
loan to the village treasurer at a below-market interest rate. Quite
possibly, the official will lose his or her job as a result, however,
absent outright bribery, the bank will lose nothing.
 The Commission has repeatedly stressed that private citizens,
vendors, developers, and providers must take some responsibility
for municipal officials complying with ethics laws. The failure of
current Article 18 to penalize private individuals and companies
 2. N.Y. PUB. OFF. LAW § 73(7)(a) (McKinney 1988).




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1993] MODEL LOCAL ETHICS LAW

who induce a municipal official to violate ethics laws is unaccept-
able. Three provisions in the bill, and in this model local ethics
law, reflect this philosophy: (1) the prohibition against anyone, in-
cluding a private person, inducing an official to violate the Code of
Ethics (section 103); (2) the debarment provision (section 112); and
(3) the applicant disclosure provision (section 108). Accordingly,
section 103 applies to officials and nonofficials alike.
§ 104. Interests in Contracts with the [County, City, Town, or
 Village].
1. Prohibited interests.
 No [County, City, Town, or Village] officer or employee shall
have an interest in a contract with the [County, City, Town, or Vil-
lage], or an interest in a bank or trust company, that is prohibited
by section 801 of the General Municipal Law of the State of New
York. Any contract willfully entered into by or with the [County,
City, Town, or Village] in which there is an interest prohibited by
that section shall be null, void, and wholly unenforceable, to the
extent provided by section 804 of that law.

2. Discloseable interests.
 Any [County, City, Town, or Village] officer or employee who
has, will have, or later acquires an interest in any actual or pro-
posed contract with the [County, City, Town, or Village] shall pub-
licly disclose the nature and extent of that interest in accordance
with section 803 of the General Municipal Law. The clerk of the
[governing body of the county, city, town, or village] shall cause a
copy of that disclosure to be filed promptly with the Ethics Board.

3. Violations.
  Any [County, City, Town, or Village] officer or employee who
willfully and knowingly violates the provisions of this section shall
be guilty of a misdemeanor, to the extent provided by section 805
of the General Municipal Law.

§ 104.-Comment.
  The current prohibition against an official having an interest in a
contract with the municipality in sections 801 and 802 of the Gen-
eral Municipal Law is overly broad, difficult to enforce, and virtu-




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82 FORDHAM URBAN LAW JOURNAL [Vol. XXI

ally unintelligible to a lay person.33 In many small, rural
communities, members of the legislative body, or other elected or
appointed officials, may well own the only hardware store, gas sta-
tion, or snow plowing service in the area. The municipality must
then either ignore the prohibition against contracts with municipal
officials or obtain the goods and services at a significantly higher
price from distant vendors. (Under General Municipal Law Sec-
tion 800(5), this prohibition applies to all municipal officials-
whether paid or unpaid).
 The General Municipal Law's prohibition against interested con-
tracts in section 801 functions as follows: it prohibits municipal of-
ficers and employees from having an "interest" in a "contract" with
the municipality if the officer or employee, individually or as a
member of a municipal board, has some authority with respect to
that contract-namely, the power or duty to negotiate, prepare, au-
thorize, or approve the contract or payment under the contract or
the power or duty to audit bills or claims under the contract or the
power or duty to appoint someone who has any of those powers or
duties. 34 (General Municipal Law section 801(2) establishes spe-
cial requirements for fiscal officers and employees of
municipalities).
 "Contract" is broadly defined in General Municipal Law section
800(2) to include not only express or implied agreements with the
municipality but also claims, accounts, or demands against the mu-
nicipality. 35 Thus, for example, a law suit against the municipality
would be considered a "contract."
 Under General Municipal Law section 800(3), an official has an
"interest" in a contract if he or she receives any "direct or indirect
pecuniary or material benefit" as a result of the contract. 6 The
official, therefore, does not need to be a party to the contract; he or
she need only receive a financial benefit because of the contract.
In addition, the official is deemed to have an interest in a contract
of his or her family or outside business or employment.37 Section
802 then sets forth fifteen exceptions to these rules.

 33. See N.Y. GEN. MUN. LAW §§ 801-802 (McKinney 1986).
 34. N.Y. GEN. MUN. LAW § 801 (McKinney 1986).
 35. N.Y. GEN. MUN. LAW § 800(2) (McKinney Supp. 1993).
 36. Id. § 800(3).
 37. Section 800(3) states:
 [A] municipal officer or employee shall be deemed to have an interest in the
 contract of (a) his spouse, minor children and dependents, except a contract
 of employment with the municipality which such officer or employee serves,
 (b) a firm, partnership or association of which such officer or employee is a




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19931 MODEL LOCAL ETHICS LAW

 If the official has an interest in the contract and has the requisite
power or duty with respect to that contract and if no exception
applies, then that interest is prohibited. In that event, under sec-
tion 804 of the General Municipal Law, the contract (if "willfully"
entered into) is "null, void and wholly unenforceable"; and, under
section 805, the official (if he or she "willfully and knowingly" vio-
lated the restriction) is guilty of a misdemeanor. "Wilful" does not
require knowledge that the contract violated the law but only
knowledge of the facts that resulted in the violation.38 Where a
prohibited interest in a contract exists, the official's disclosure of
the interest and his or her abstention from participating in the mat-
ter is to no avail; the contract is nonetheless void, and the official
has committed a crime.
 Under section 803 of the General Municipal Law, where the offi-
cial "has, will have, or later acquires" an interest in an actual or
proposed contract with the municipality, he or she must publicly
disclose in writing to the governing body of the municipality the
nature and extent of that interest as soon as he or she has knowl-
edge of it,39 unless the interest is exempted under section 802(2).
Thus, the official must disclose an interest in a contract with his or
her municipality even if the official lacks sufficient power or duty
over the contract to render the interest prohibited and even if the
interest is exempted under section 802(1). "Wilfully and know-
ingly" failing to disclose an interest in a contract is a misdemeanor
under section 805 of the General Municipal Law.
  Certain additional prohibited interest provisions apply in Nassau
County under General Municipal Law section 804-a.

§ 105. Definitions.
  Unless otherwise stated or unless the context otherwise requires,
when used in this [chapter]:
 1. "Appear" and "appear before" mean communicating in
any form, including, without limitation, personally, through an-
other person, by letter, or by telephone.
 2. "Customer or client" means (a) any person to whom a
[County, City, Town, or Village] officer or employee has supplied
 member or employee, (c) a corporation of which such officer or employee is
 an officer, director or employee and (d) a corporation any stock of which is
 owned or controlled directly or indirectly by such officer or employee.
Id.
 38. Op. St. Compt. 85-9; see also Landau v. Percacciolo, 66 A.D. 2d 80, 412
N.Y.S.2d 378 (App. Div. 1978).
 39. See N.Y. GEN. MUN. LAW § 803 (McKinney 1986).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

goods or services during the previous twenty-four months having,
in the aggregate, a value greater than $1,000 or (b) any person to
whom a [County, City, Town, or Village] officer's or employee's
outside employer or business has supplied goods or services during
the previous twenty-four months having, in the aggregate, a value
greater than $1,000 but only if the officer or employee knows or
has reason to know the outside employer or business supplied the
goods or services.
 3. "Ethics Board" means the Ethics Board of the [County,
City, Town, or Village] of established pursuant to sec-
tion 203 of this [chapter].
 4. "Gift" and "financial benefit" shall include any money, ser-
vice, license, permit, contract, authorization, loan, travel, entertain-
ment, hospitality, or any promise thereof, or any other gratuity or
promise thereof or anything of value. A financial transaction may
be a financial benefit but shall not be a gift unless it is on terms not
available to the general public. "Gift" and "financial benefit" do
not include campaign contributions authorized by law.
 5. "Ministerial act" means an action performed in a pre-
scribed manner without the exercise of judgment or discretion as to
the propriety of the act.
 6. "[County, City, Town, or Village]" means the [County, City,
Town, or Village] of I but shall not include the [County,
City, Town, or Village court].
 7. "[County, City, Town, or Village] officer or employee"
means any officer or employee of the [County, City, Town, or Vil-
lage], whether paid or unpaid, and includes, without limitation, all
members of any office, board, body, advisory board, council, com-
mission, agency, department, district, administration, division, bu-
reau, or committee of the [County, City, Town, or Village].
"[County, City, Town, or Village] officer or employee" shall not
include:
 (a) A judge, justice, officer, or employee of the unified
 court system;
 (b) A volunteer fire fighter or civil defense volunteer,
 except a fire chief or assistant fire chief; or
 (c) A member of an advisory board of the [County,
 City, Town, or Village] if, but only if, the advisory board
 has no authority to implement its recommendations or to
 act on behalf of the [County, City, Town, or Village] or to
 restrict the authority of the [County, City, Town, or Vil-
 lage] to act. No entity established pursuant to the Gen-




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19931 MODEL LOCAL ETHICS LAW

 eral Municipal Law of the State of New York shall be
 deemed an advisory board for purposes of this paragraph.
 8. "Outside employer or business" means:
 (a) any activity, other than service to the [County, City,
 Town, or Village], from which the [County, City, Town, or
 Village] officer or employee receives compensation for
 services rendered or goods sold or produced;
 (b) any entity, other than the [County, City, Town, or
 Village], of which the [County, City, Town, or Village] of-
 ficer or employee is a member, officer, director, or em-
 ployee and from which he or she receives compensation
 for services rendered or goods sold or produced; or
 (c) any entity in which the [County, City, Town, or Vil-
 lage] officer or employee has an ownership interest, ex-
 cept a corporation of which the [County, City, Town, or
 Village] officer or employee owns less than five percent of
 the outstanding stock.
For purposes of this definition, "compensation" shall not include
reimbursement for necessary expenses, including travel expenses.
 9. "Person" shall include both individuals and entities.
 10. "Relative" means a spouse, child, step-child, brother, sister,
or parent of the [County, City, Town, or Village] officer or em-
ployee, or a person claimed as a dependent on the [County, City,
Town, or Village] officer's or employee's latest individual state in-
come tax return.
 11. "Subordinate" of a [County, City, Town, or Village] officer
or employee shall mean another [County, City, Town, or Village]
officer or employee over whose activities he or she has direction,
supervision, or control, except those who serve in positions that are
in the exempt classification under section 41 of the Civil Service
Law of the State of New York or in the unclassified service under
subdivisions (a) through (f) of section 35 of that law.

§ 105.-Comment.
 Although many ethics laws lead off with a section containing nu-
merous and lengthy definitions, the Commission believed that the
first section of an ethics law should be a code of ethics. Further-
more, substantive provisions should not be buried in intricately
drafted definitions. In particular, words in the code of ethics must
not be so defined that they trap an unsuspecting official.




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86 FORDHAM URBAN LAW JOURNAL [Vol. XXI

  The definitions in this model local law are kept to a minimum
and do not add to the official's duties imposed by the plain mean-
ing of the Code of Ethics. Rather, if anything, the definitions cut
back on the official's duties as he or she would understand them to
be upon reading the Code of Ethics. For example, the definition of
"relative" only includes the immediate family, not cousins, uncles,
or aunts. Thus, the official who reads the Code of Ethics, without
consulting the definitions or exclusions, will in all likelihood view
the Code of Ethics as more restrictive than it really is. This ap-
proach protects the official from inadvertently violating the Code
of Ethics.
  Some municipalities may wish to include additional definitions-
for example, of "member of household" (section 100(1)(c)) or
"political committee" (section 100(7)).40

§ 105(2).
  An employee of a large corporation may not know many of the
customers or clients of his or her employer and should not be pe-
nalized for that understandable ignorance. For that reason, the
"knows or has reason to know" language is included in the
definition.

§ 105(4).
 "A financial transaction.., on terms not available to the general
public" would include, for example, a reduced-interest loan to a
municipal official. The reduction in interest would constitute a gift.

§ 105(6).
 As discussed under section 105(7) below, the model law excludes
court officers and employees from its coverage. The definition of
the municipality (county, city, town, or village) enacting the local
ethics law expressly excludes the municipal court, thereby clarify-
ing that the local ethics law does not apply to the local court. Thus,
to the extent permitted by state regulations governing attorneys, a
lawyer who is a town zoning board member could appear in the
town justice court on behalf of a private client. So, too, the revolv-
 40. "Member of household" might be defined as follows: "'Member of household
shall mean any person with whom an officer or employee of the [County, City, Town,
or Village] lives as a single household unit." Cf McMinn v. Town of Oyster Bay, 66
N.Y.2d 544, 488 N.E.2d 1240, 498 N.Y.S.2d 128 (N.Y. 1985). "Political committee"
might be defined as follows: "'Political committee' shall have the meaning ascribed to
that term in section 14-100 of the Election Law."




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1993] MODEL LOCAL ETHICS LAW

ing door provision would not restrict former municipal officials
(e.g., assistant district attorneys or assistant county attorneys) from
appearing before the local court after leaving municipal service.

§ 105(7).
 Like Article 18, the model law includes unpaid as well as paid
officials. Indeed, at the municipal level it is the unpaid officials,
such as zoning and planning board members, who often wield the
greatest power.
 Except in the area of financial disclosure, Article 18 regulates
not only executive and legislative officers and employees but also
judicial officers and employees.41 The model law, however, ex-
cludes judges and nonjudicial employees of the Unified Court Sys-
tem. Accordingly, for example, the revolving door bar would not
preclude a former court clerk from appearing before the munici-
pality's zoning board immediately upon leaving municipal service.
If the municipality feels that further clarification is needed in that
regard, the following exclusion could be added to section 102:
"Appearances by a former [County, City, Town, or Village] officer
or employee in a court of the [County, City, Town, or Village]."
 Members of purely advisory boards are excluded from coverage
by the Code of Ethics because those members are not "officers or
employees" of the municipality. 42

§ 105(8).
 Some municipalities may wish to lower the five percent thresh-
old for publicly traded stock. Other municipalities may wish to re-
quire disclosure of an official's interest in a corporation that
exceeds a specific value, such as $25,000, even if the official owns
less than five percent of the stock in that corporation. Some mu-
 41. N.Y. GEN. MUN. LAW §§ 800(5), 810(2), 810(3) (McKinney Supp. 1993).
 42. Cf. ASPCA v. Board of Trustees of State Univ. of N.Y., 184 A.D.2d 508, 584
N.Y.S.2d 198 (App. Div. 1992) (holding that SUNY Laboratory Animal Users' Com-
mittee was not "performing a governmental or proprietary function for the state"
within the meaning of the Freedom of Information Law, N.Y. Pun. OFF. LAW §§ 84-
90 (McKinney Supp. 1993)); ASPCA v. Board of Trustees of State Univ. of N.Y., 165
A.D. 561, 568 N.Y.S.2d 631 (App. Div. 1991), affd on other grounds, 79 N.Y.2d 927,
591 N.E.2d 1169, 582 N.Y.S.2d 983 (1992); Poughkeepsie Newspaper Div. of Gannet
Satellite Info. Network v. Mayor's Intergov'tal Task Force on N.Y.C. Water Supply
Needs, 145 A.D.2d 65, 537 N.Y.S.2d 582 (App. Div. 1989); Goodson Todman Enter.,
Ltd. v. Town Bd. of Milan, 151 A.D.2d 642, 542 N.Y.S.2d 373 (App. Div.), appeal
denied, 547 N.E.2d 103 (1989) (all three cases holding that an advisory board meeting
certain conditions is not a "public body" for purposes of the New York State Open
Meetings Law, Public Officers Law §§ 100-111).




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88 FORDHAM URBAN LAW JOURNAL [Vol. XXI

nicipalities may wish to include debt as well as equity within the
definition of "outside employer or business." Other municipalities
may wish to extend the definition to noncompensated positions,
such as the director of a nonprofit organization; however, munici-
palities should exercise caution in that regard, lest the definition
capture every religious, fraternal, and social affiliation of an
official.

§ 105(10).
 "Relative" appears both in the general prohibition of the Code
of Ethics (section 100(1)(e)) and in the annual disclosure require-
ment (section 107(4)(a)). The definition is limited to the immedi-
ate family. Some municipalities may wish to expand or contract
that definition.

§ 105(11).
 The smooth functioning of government often requires, at least in
large municipalities, ideological and political compatibility between
elected officials and their senior staff. To prohibit officials from
soliciting from such subordinates, who are inherently part of the
political process, is simply unrealistic. Thus, the model law ex-
cludes exempt employees and certain unclassified employees from
the definition of subordinate.

§ 106. Appearances by Outside Employers and Businesses of
 [County, City, Town, or Village] Officers and
 Employees.
 1. Except as provided in subdivision 3 of this section, the
outside employer or business of a [County, City, Town, or Village]
officer or employee shall not appear before the particular agency in
which the [County, City, Town, or Village] officer or employee
serves or by which he or she is employed.
  2. Except as provided in subdivision 3 of this section, the
outside employer or business of a [County, City, Town, or Village]
officer or employee shall not appear before any other [County,
City, Town, or Village] agency if the [County, City, Town, or Vil-
lage] officer or employee has the authority to appoint any officer,
employee, or member of the agency or to review, approve, audit,
or authorize any budget, bill, payment, or claim of the agency.
  3. Nothing in this section shall be construed to prohibit the
outside employer or business of a [County, City, Town, or Village]
officer or employee from




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19931 MODEL LOCAL ETHICS LAW

 (a) Appearing on its own behalf, or on behalf of the
 [County, City, Town, or Village], before a [County, City,
 Town, or Village] agency;
 (b) Seeking or obtaining a ministerial act; or
 (c) Receiving a [County, City, Town, or Village] service
 or benefit, or using a [County, City, Town, or Village] fa-
 cility, which is generally available to the public.

§ 106. - Comment.
 Article 18 contains no general prohibition on the employer or
business of a municipal official appearing before the official's
board or agency or before other agencies of the municipality over
which the official has control. Thus, for example, a mayor's law
firm could appear on behalf of a private client before the city coun-
cil, so long as the mayor receives no compensation for that
representation. 3
 Section 106 of the model law would restrict such appearances.
However, one must emphasize that under section 106 an official's
private employer or business is only prohibited from appearing on
behalf of a customer or client before the official's particular agency
or before an agency over which the official exercises some control.
The firm may appear before any other agency of the municipality.
The firm may also appear before the official's own agency on be-
half of the firm itself, for example, to obtain a zoning variance to
expand its own office; however, in that event the official would still
be required to recuse himself or herself under section 100(2).
"Particular" is included before "agency" to clarify that "agency"
includes only that unit within which the official has control. In ad-
dition, the firm may appear before the official's agency on behalf of
the municipality or to seek a ministerial action or to receive the
same benefits available to anyone else in the community (section
106(3)).
 Some municipalities may wish to extend the ban on appearances
by officials' firms to agencies with which the official is not associ-
ated. However, prohibiting an official's outside firm or business
from appearing before any agency of the municipality would effec-
tively bar many professionals from serving on municipal boards.
Furthermore, citizens' concerns over appearances by officials'
firms before the municipality are met by a prohibition of such ap-

  43. N.Y. GEN. MUN. LAW § 805-a(1)(c) (McKinney Supp. 1993).




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90 FORDHAM URBAN LAW JOURNAL [Vol. XXI

pearances before those agencies of the municipality over which the
official has some control.

§ 107. Annual Disclosure.
1. Officers and employees required to file.
 Officers and employees holding the following job titles or posi-
tions shall be required to file a signed annual disclosure statement:
 [Set forth the job titles or positions of all officers and employees
 required to file annual disclosure statements.]

2. Time and place for filing.
 Annual disclosure statements shall be filed with the Ethics Board:
 (a) Within 120 days after the effective date of this
 section;
 (b) Within 30 days after becoming subject to the re-
 quirements of subdivision 1 of this section; and
 (c) No later than May 15 of each year thereafter.

3. Changes in disclosed information.
  Within 30 days after a change in the information contained in his
or her most recently filed annual disclosure statement, an officer or
employee shall file a signed amendment to the statement indicating
the change.

4. Contents of annual disclosure statement.
 The annual disclosure statement shall disclose:
 (a) The location of any real property within the
 [County, City, Town, or Village], or within one mile of the
 boundary of the [County, City, Town, or Village], in
 which the officer or employee, or his or her relative, has a
 financial interest.
 (b) With respect to each outside employer or business of
 the [County, City, Town, or Village] officer or employee:
 (i) Its name (if any);
 (ii) The nature of its business;
 (iii) Whether it is self employment, a sole proprie-
 torship, or an entity and, if an entity, what type of
 entity;
 (iv) The [County, City, Town, or Village] officer's
 or employee's relationship to it, such as owner, part-




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1993] MODEL LOCAL ETHICS LAW

 ner, officer, director, member, employee, or
 shareholder.
 (c) With respect to each outside employer or business of
 the [County, City, Town, or Village] officer's or em-
 ployee's spouse, the information required by paragraph
 (b) of this subdivision.

5. Good faith efforts.

 Failure to disclose the information required by subdivision 4 of
this section with respect to a [County, City, Town, or Village] of-
ficer's or employee's spouse or other relative shall not constitute a
violation of that subdivision if the officer or employee has made a
good faith effort to obtain the information and if he or she also sets
forth those efforts in his or her disclosure statement.

§ 107.-Comment.

NOTE. COUNTIES, CITIES, TOWNS, AND VILLAGES
WITH POPULATIONS OF 50,000 OR MORE MUST
COMPLY WITH THE FINANCIAL DISCLOSURE
REQUIREMENTS SET FORTH IN SECTIONS
810-813 OF THE GENERAL MUNICIPAL LAW.

  However appropriate lengthy annual financial disclosure state-
ments may be for state employees, who are full time and relatively
well paid, the imposition of such statements by state mandate upon
local government officials is wholly inappropriate. Unlike state
government, local government at the highest levels is essentially a
volunteer government. Legislative bodies, zoning boards of ap-
peal, planning boards, architectural review boards, community col-
lege boards, and the like, are composed entirely of unpaid or
minimally paid members.
  The grossly intrusive financial disclosure requirements in Article
18 have given annual disclosure a bad reputation. However, while
far less significant than transactional disclosure, reasonable annual
disclosure does fill an important, though limited, role in an ethics
law. In particular, annual disclosure reveals potential conflicts of
interest before they arise and thus alerts the official-and the citi-
zenry-to those potential conflicts. Annual disclosure thereby pro-
vides a check on transactional disclosure and protects officials by




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identifying potential ethical pitfalls, which the official can then take
steps to avoid. 44

§ 107(1).
  The local government ethics bill proposed by the Commission 45
would require disclosure by the following classes of officers and
employees:
 (a) Elected officials;
 (b) Department heads and those authorized to act on
 their behalf (e.g., first deputies);
 (c) Officers and employees who hold policymaking posi-
 tions, including members of municipal boards, such as the
 planning and zoning boards;
 (d) Officials whose job descriptions or whose actual du-
 ties involve the negotiation, authorization, or approval of
 (i) Contracts, leases, franchises, revocable con-
 sents, concessions, variances, special permits, or
 licenses;
 (ii) The purchase, sale, rental, or lease of real prop-
 erty, personal property, or services, or a contract
 therefor;
 (iii) The obtaining of grants of money or loans; or

 44. See generally Bertoldi v. Wachtler, 952 F.2d 656 (2d Cir. 1991) (per curiam)
(upholding, against federal and state constitutional challenges, financial disclosure re-
quirements of New York's Ethics in Government Act as applied to court clerks);
Igneri v. Moore, 898 F.2d 870 (2d Cir. 1990) (holding that financial disclosure provi-
sions of Public Officers Law § 73-a, as applied to political party chairs, do not violate
constitutional right to privacy); Levison v. County of Orange, 186 A.D.2d 257, 588
N.Y.S.2d 330 (App. Div. 1992) (upholding county ethics board's refusal to grant em-
ployee waiver of disclosure requirement); Watkins v. New York State Ethics Comm'n,
554 N.Y.S.2d 955 (Sup. Ct. 1990) (holding that financial disclosure provisions of Pub-
lic Officers Law § 73-a, including requirements for financial disclosure by spouses, do
not violate federal or state constitutional rights to privacy, free speech and free associ-
ation, fourth amendment protection, equal protection, or the privilege against self-
incrimination); Grygas v. New York State Ethics Comm'n, 554 N.Y.S.2d 779 (Sup. Ct.
1990) (rejecting claim that New York State Legislature, in violation of separation of
powers provision of article III, section 1, of New York State Constitution, delegated
to state agencies, and to State Ethics Commission, authority to determine which state
employees are "policy makers" for purpose of financial disclosure, without meaning-
ful standards and guidelines); Twelve Assistant Dist. Attorneys v. Nassau County Bd.
of Ethics, N.Y. L.J., Nov. 12, 1991, at 35 (upholding local board of ethics' denial of
assistant district attorneys' request for exemptions from filing financial disclosure
statements, even though filers were not policymakers).
 45. See Temporary State Comm'n on Local Gov't Integrity, supra note 1 at 26
(Appendix L).




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19931 MODEL LOCAL ETHICS LAW

 (iv) The adoption or repeal of any rule or regula-
 tion having the force and effect of law.
The above categories are taken from sections 810(2), 810(3),
812(1), and 813(9)(k) of the General Municipal Law. Municipali-
ties subject to mandatory financial disclosure under section 811 of
that law must require, at a minimum, annual disclosure by those
types of officials, although such municipalities may, if they desire,
require disclosure by additional types of officials. Municipalities
not subject to mandatory annual financial disclosure under current
Article 18 may wish to expand or contract the above list. For ex-
ample, some municipalities might wish to add candidates for local
elected office or local political party leaders.46
 For clarity, a municipality's local ethics law should set forth the
job titles or positions of the officials required to file annual disclo-
sure statements.

§ 107(2).
 Municipalities may wish to include different deadlines. The
specified date of May 15 occurs a month after most officials' in-
come tax returns are due and should provide adequate time for an
official to file.

§ 107(3).
  Some persons fear that this requirement may trap officials who
simply forget to file an amendment when, for example, they sell
real property they own. On the other hand, absent such a require-
ment, a disclosure statement may rapidly become outdated.

§ 107(4).
WARNING: THESE DISCLOSURE REQUIREMENTS DO
NOT COMPLY WITH CURRENT STATE LAW FOR
COUNTIES, CITIES, TOWNS, AND VILLAGES
WITH A POPULATION OF 50,000 OR MORE.
A DISCLOSURE FORM COMPLYING WITH THOSE
REQUIREMENTS IS SET FORTH IN APPENDIX A
 Annual disclosure requirements differ widely throughout the
country. The requirements set forth in the model law will suffice in
all but the largest municipalities in the state because the vast ma-
jority of conflicts of interest arise either with respect to the offi-

 46. See N.Y. GEN. MUN. LAW § 812(1)(a) (McKinney Supp. 1993).




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cial's real property ("May I vote to make the land adjoining my
brother's home a park?") or with respect to the official's nonmu-
nicipal business or employment.47
 Numerous discussions and public hearings during the Commis-
sion's tenure revealed virtually no opposition to disclosure of the
information required by section 107(4), precisely because that in-
formation is relevant to the duties of the officials. Furthermore, all
of the information requested by section 107(4) is a matter of public
knowledge, although it is not otherwise collected in one place.
Ethics boards have the authority to subpoena additional informa-
tion from the official if necessary (section 209(1)). They also have
the power under section 211 to grant waivers from filing or from
disclosing certain information on the annual disclosure statement
in the rare instances in which such filing or disclosure proves intru-
sive or dangerous (e.g., the home address of certain law enforce-
ment officials in a large city).
 Section 107(4)(a) requires disclosure of the location of the real
property of the official and of his or her spouse, brothers, sisters,
parents, children, and dependents. Those relatives are included be-
cause of the significant appearance of impropriety that results
when actions of an official benefit his or her relative's real prop-
erty. However, officials need not disclose the nonmunicipal busi-
ness or employment of their parents, children, or siblings (section
107(4)(b)-(c)). Real property "within one mile of the boundary of
the [municipality]" should be disclosed because an official's actions
not infrequently affect property in the neighboring community. In
the event an official, after a good faith effort, is unable to obtain
the required information from an estranged spouse or other rela-
tive, the official need Only set forth those efforts in the disclosure
statement; he or she need not review land records (section 107(5)).
(Some municipalities may wish to replace the good faith effort pro-
vision with a requirement that an official who lacks the requested
information about his relative need only so state under oath or by
affirmation subject to the penalties of perjury.)
 The model law does not require disclosure of any financial data,
such as the amount of income an official receives from nonmunici-
pal business or employment. As the Commission often remarked,
disclosure of financial data serves little purpose because a conflict
 47. A sample disclosure form complying with the requirements of section 107(4) is
set forth in Mark Davies, 1987 Ethics in Government Act: FinancialDisclosure Provi-
sionsfor Municipal Officials and Proposalsfor Reform, 11 PACE L. REV. 243, 269-272
(1990) (Appendix B: Annual Statement of Financial Disclosure).




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is a conflict, whether it involves $500 or $5,000. Furthermore, offi-
cials strenuously object to disclosing their finances; the financial
disclosure requirements of Article 18, mandatory for the munici-
palities with populations of 50,000 or more, have already caused
the resignation of over 200 officials around the state.48 Finally,
under Article 18, financial data must be redacted before the disclo-
sure statement can be shown to the public; 49 redaction substantially
increases the administrative burden and expense of administering
an ethics law.
 Some municipalities may feel the need to require disclosure of
additional information, such as creditors or debtors of the official,
and such as persons from whom the official has received a gift in
excess of a specified amount during the year covered by the filing.
Some municipalities may wish to vary the type and amount of dis-
closure according to the nature of the official's duties or according
to whether the official is paid or unpaid. However, many volunteer
board members, such as members of planning and zoning appeal
boards, have extensive authority at the local level and should,
therefore, be required to file some form of annual disclosure
statement.
 The text of the disclosure form should not be included in the
local law, lest every minor clarification in the form require a new
local law.

§ 108. Applicant Disclosure: Generally.
 1. Where a person requests the [County, City, Town, or Vil-
lage] or a [County, City, Town, or Village] officer or employee to
take or refrain from taking any action (other than a ministerial act)
that may result in a financial benefit both to the requestor and to
either any officer or employee of the [County, City, Town, or Vil-
lage] or one of the other persons listed in subdivision 1 of section
100 of this [chapter], the requestor shall disclose the names of any
such persons, to the extent known to the requestor at the time of
the request.
 2. If the request is made in writing, the disclosure shall accom-
pany the request. If the request is oral and made at a meeting of a
public body, the disclosure shall be set forth in the public record of
the body. If the request is oral and not made at a meeting. of a
 48. See Temporary State Comm'n on Local Gov't Ethics, Final Report 9 (unpub-
lished section of the Report, on file with the Fordham Urban Law Journa!).. , 1
 49. See N.Y. GEN. MUN. LAW § 813(18)(a)(1) (McKinney 1988 & Supp. 1993);
N.Y. PUB. OFF. LAW § 89(2)(a) (McKinney 1988).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

public body, the disclosure shall be set forth in a writing filed with
the [County, City, Town, or Village] clerk.
 3. A person shall not be required to file a disclosure statement
pursuant to this section if he or she, with respect to the same mat-
ter, has filed a disclosure statement complying with requirements
of section 109 of this [chapter].

§ 108.-Comment.
 This section is the second of three provisions in this model local
ethics law, reflecting the view that private citizens and companies
must share responsibility for officials complying with ethics laws.
 Article 18 requires applicant disclosure only in connection with
land use applications; that requirement is reflected in section 109 of
this model law. Section 108 broadens applicant disclosure to all
instances in which the applicant is requesting the municipality to
act (or refrain from acting) on a matter in which any official of the
municipality, or his or her family, business, customers, or clients,
may have a financial interest. For example, an applicant for a zon-
ing variance would be required to list the names of any officer or
employee of the municipality who might financially benefit from
the granting of the application.
 Applicant disclosure provides a check on transactional and an-
nual disclosure; together, these three types of disclosure form the
disclosure triad in this model law. Section 108 does not require the
applicant to research which officials, if any, have an interest in the
matter, but only requires the applicant to disclose the names of
interested officials to the extent the applicant knows them. Also,
the section imposes no burden on the applicant to update the dis-
closure if the applicant later learns that certain officials have an
interest in the application.
 To avoid imposing too great a burden on applicants, section 108
only requires applicant disclosure when the application financially
benefits the applicant, for example, a zoning variance for the appli-
cant's home. Thus, for example, no applicant disclosure would be
required by a developer who offers to donate as parkland a lot
immediately across the street from the building inspector's home.
Some municipalities may, therefore, wish to delete the requirement
in section 108 that the requested action result in a financial benefit
to the requester.
 To obviate the necessity of an applicant having to file one disclo-
sure statement under section 108 and another one under section
 109 for the same application, section 108(3) exempts an official




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19931 MODEL LOCAL ETHICS LAW

who files a statement under section 109 from filing one under sec-
tion 108.

§ 109. Applicant Disclosure: Land Use Applications.
1. Disclosure.
 Every application, petition, or request submitted for a variance,
amendment, change of zoning, applroval of a plat, exemption from
a plat or official map, license, or permit, pursuant to the provisions
of any ordinance, local law, rule, or regulation constituting the zon-
ing and planning regulations of the [County, City, Town, or Vil-
lage] shall state the information required, to the extent required,
by section 809 of the General Municipal Law of the State of New
York.

2. Violations.
  Any person who willfully and knowingly violates the provisions
of this section shall be guilty of a misdemeanor, to the extent pro-
vided by section 809 of the General Municipal Law.

§ 109.-Comment.
  As noted above, this section reflects the requirements of section
809 of the General Municipal Law. It is not contained in the bill
proposed by the Commission and Advisory Board because its pro-
visions are sufficiently covered by section 108 of the bill.

§ 110. Void Contracts.
 Any contract or agreement entered into by or with the [County,
City, Town, or Village] which results in or from a violation of any
provision of sections 100, 101, or 106 of this [chapter] shall be void
unless ratified by the [governing body of the county, city, town, or
village]. Such ratification shall not affect the imposition of any
criminal or civil penalties pursuant to this [chapter] or any other
provision of law.

§ 110.-Comment.
 Some municipalities have opted for a provision making a tainted
contract voidable by the municipality's ethics board. Such an ap-
proach rewards inaction. Therefore, this model law makes a con-
tract entered into in violation of the ethics law void unless ratified
by the municipality's governing body. Under the Open Meetings




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98 FORDHAM URBAN LAW JOURNAL [Vol. XXI

Law, such ratification would have to be done in a public meeting
 50
after public notice.
 The model local ethics law gives the governing body of the mu-
nicipality, rather than the ethics board, the authority to ratify the
contract, because the governing body is better able to evaluate
whether the contract is in the best interests of the municipality.
Ratification of the contract does not prevent the imposition of pen-
alties upon any person whose ethical improprieties caused the con-
tract to be tainted. Moreover, section 110 does not apply to
contracts prohibited by section 801 of the General Municipal Law
(incorporated into section 104 of this model local law); such con-
tracts may not be ratified.

§ 111. Penalties.
1. Disciplinary action.
 Any [County, City, Town, or Village] officer or employee who
engages in any action that violates any provision of this [chapter]
may be warned or reprimanded or suspended or removed from of-
fice or employment, or be subject to any other sanction authorized
by law or collective bargaining agreement, by the appointing au-
thority or person or body authorized by law to impose such sanc-
tions. A warning, reprimand, suspension, removal, or other
authorized sanction may be imposed in addition to any other pen-
alty contained in this [chapter] or in any other provision of law.

2. Civil fine.
  Any [County, City, Town, or Village] officer or employee who
violates any provision of this [chapter] may be subject to a civil fine
of up to $1,500 for each violation. A civil fine may be imposed in
addition to any other penalty contained in any other provision of
law or in this [chapter], other than a civil forfeiture pursuant to
subdivision 4 of this section. A civil fine may not be imposed for a
violation of section 104 of this [chapter].

3. Damages.
  Any person, whether or not a [County, City, Town, or Village]
officer or employee, who violates any provision of this [chapter]
shall be liable in damages to the [County, City, Town, or Village]
for any losses or increased costs incurred by the [County, City,
 50. N.Y. PUB. OFF. LAW §§ 103(a), 104 (McKinney 1988).




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19931 MODEL LOCAL ETHICS LAW

Town, or Village] as a result of the violation. Such damages may
be imposed in addition to any other penalty contained in any other
provision of law or in this [chapter], other than a civil forfeiture
pursuant to subdivision 4 of this section.

4. Civil forfeiture.
 Any person, whether or not a [County, City, Town, or Village]
officer or employee, who intentionally or knowingly violates any
provision of this [chapter] may be subject to a civil forfeiture to the
[County, City, Town, or Village] of a sum equal to.three times the
value of any financial benefit he or she received as a result of the
conduct that constituted the violation. A civil forfeiture may be
imposed in addition to any other penalty contained in any other
provision of law or in this [chapter], other than a civil fine pursuant
to subdivision 2 or damages pursuant to subdivision 3 of this sec-
tion. Civil forfeiture shall not be available for a violation of section
104 of this [chapter].

5. Misdemeanor.
 Any person, whether or not a [County, City, Town, or Village]
officer or employee, who intentionally or knowingly violates any
provision of this [chapter] shall be guilty of a class A misdemeanor
and, upon conviction thereof, if a [County, City, Town, or Village]
officer or employee, shall forfeit his or her [County, City, Town, or
Village] office or employment. This subdivision shall not apply to a
violation of section 104 of this [chapter].
§ lll.-Comment.

 Aside from criminal penalties-and seldom should an ethics vio-
lation be classified as criminal-few penalties exist for violation of
Article 18. Indeed, except in the financial disclosure context, a vio-
lation of Article 18 is either a misdemeanor or is punishable only
by disciplinary action. By contrast, the model law provides an ap-
propriate range of penalties for ethical improprieties.
 The authority for the adoption of these penalties rests upon the
Municipal Home Rule Law, which empowers municipalities
 [t]o provide for the enforcement of local laws by legal or equita-
 ble proceedings which are or may be provided or authorized by
 law, to prescribe that violations thereof. shall constitute misde-
 meanors, offenses or infractions and to provide for the punish-




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100 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 ment of violations thereof by civil penalty, fine, forfeiture or
 imprisonment, or by two or more of such punishments .... 51

§ 111(1).
  The appointing authority, which, as a general rule, has the power
to remove appointed officials, must be given the power to impose
disciplinary action. The ethics board only recommends such action.

§ 111(2).
 Under sections 811(1)(c) and 813(13) of the General Municipal
Law, a municipality may prescribe civil fines of up to $10,000 for
knowingly and wilfully failing to file an annual statement of finan-
cial disclosure or for knowingly and wilfully making a false state-
ment with intent to deceive or giving information on a financial
 52
disclosure statement that the reporting official knows to be false.
The model law provides for a maximum fine of $1,500, which will
normally be sufficient. However, a provision for a $10,000 fine is
required in those municipalities subject to mandatory financial dis-
closure under section 811(2) of the General Municipal Law. 53
 The model law exempts violations of section 104 (prohibited in-
terests in contracts) from the civil fine provision because such ac-
tivity constitutes a misdemeanor under section 805 of the General
Municipal Law and because such activity should not be prohibited
but should merely require disclosure and recusal. (Such violations
are not exempted from subdivision 1 (disciplinary action) because
any official who commits a crime should be subject to disciplinary
action.)
 Finally, to avoid unfairness and possible claims of confiscation,
the model law precludes imposition of both a civil fine and a civil
forfeiture.

§ 111(3).
 A municipality may not by local law create a new cause of ac-
tion. This provision merely recognizes the municipality's right to
obtain damages from an official whose unlawful acts have resulted
in loss to the municipality. For that same reason, this provision
does not exempt a violation of section 104.

  51. N.Y. MUN. HOME RULE LAw § 10(4)(b) (McKinney 1969).
  52. See N.Y. GEN. MUN. LAw §§ 811(1)(c), 813(13) (McKinney Supp. 1993).
  53. See id. § 811(2).




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1993] MODEL LOCAL ETHICS LAW

§ 111 (4).
  For the reasons set forth under subdivision (2) above, violations
of section 104 are excluded from this provision as well.

§ 111 (5).
  Since a violation of section 104 is subject to the separate misde-
meanor provision of section 805 of the General Municipal Law, as
incorporated in section 104 of this model law, such violations are
excluded from this provision.

§ 112. Debarment.
 1. Any person, whether or not a [County, City, Town, or Vil-
lage] officer or employee, who intentionally or knowingly violates
any provision of this [chapter] shall be prohibited from entering
into any contract with the [County, City, Town, or Village] for a
period not to exceed three years, as provided in subdivision 5 of
section 210 of this [chapter]. Debarment may not be imposed for a
violation of section 104 of this [chapter].
 2. No person, whether or not a [County, City, Town, or Village]
officer or employee, shall enter into a contract in violation of a bar
imposed pursuant to subdivision 1 of this section.
 3. Nothing in this section shall be construed to prohibit any
person from receiving a service or benefit, or from using a facility,
which is generally available to the public.
 4. Under this section, a corporation, partnership, or other en-
tity shall not be held vicariously liable for the actions of an em-
ployee. A corporation, partnership, or other entity shall not be
debarred because of the actions of an employee unless the em-
ployee acted in the execution of company policy or custom. A
store, region, division, or other unit of an entity shall not be debar-
red because of the actions of an employee of that unit unless the
employee acted at the direction, or with the actual knowledge or
approval, of the manager of the unit.

§ 112.-Comment.
  This section is the third of three provisions in the bill, and in this
model local ethics law, reflecting the view that private citizens and
companies must share responsibility for officials complying with
ethics laws. Simply stated, debarment means that anyone who in-
tentionally or knowingly violates a provision of the model law, in-
cluding a private business that induces a municipal official to




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violate the Code of Ethics, may be prohibited from doing business
with the municipality for a period not to exceed three years. That
penalty would be imposed by the court in a proceeding initiated by
the governing body of the municipality or its ethics board (section
210(5)).
 Although no court has ruled on the issue, a municipality may
enact this provision under the municipality's home rule powers,
provided that the provision limits the debarment to doing business
with the particular municipality.
 Section 112 excludes from debarment violations of section 104
(prohibited interests in contracts) for the reasons set forth in the
discussion of section 111 above.
 Section 112(4) has been added to address a concern of the busi-
ness community that debarment might be imposed against an en-
tire corporation for the illicit and unauthorized acts of an
individual employee in one division or corporate subsidiary.
Under this provision, a store or division of a corporation could be
debarred if the manager of that store or division directed or actu-
ally knew or approved of the ethics violation; however, the corpo-
ration itself could not be debarred unless the employee's actions
 54
reflected corporate (not store or divisional) policy or custom.

§ 113. Injunctive Relief.
 1. Any resident, officer, or employee of the [County, City,
Town, or Village] may initiate an action or special proceeding, as
appropriate, in the court of appropriate jurisdiction for injunctive
relief to enjoin an officer or employee of the [County, City, Town,
or Village] from violating this [chapter] or to compel an officer or
employee of the [County, City, Town, or Village] to comply with
the provisions of this [chapter]. In lieu of, or in addition to, injunc-
tive relief, the action or special proceeding, as appropriate, may
seek a declaratory judgment.
 2. No action or special proceeding shall be prosecuted or main-
tained pursuant to subdivision 1 of this section, unless (a) the plain-
tiff or petitioner shall have filed with the Ethics Board a sworn
complaint alleging the violation by the officer or employee, (b) it
shall appear by and as an allegation in the complaint or petition
filed with the court that at least six months have elapsed since the
 54. The phrase "policy or custom" is taken from Monell v. New York City Dep't
of Social Servs., 436 U.S. 658, 691-92 (1978) (holding that a municipality can be found
liable under 42 U.S.C. § 1983 only when execution of a government policy or custom
inflicts the injury and that vicarious liability does not apply under § 1983).




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filing of the complaint with the Ethics Board and that the Ethics
Board has failed to file a determination in the matter, and (c) the
action or special proceeding shall be commenced within ten
months after the alleged violation occurred.

§ 113.-Comment.
 Allegations of unethical conduct raise sensitive questions that
cannot be left unresolved. This section addresses the failure of an
ethics board to act on a matter before it. If, however, an ethics
board does act within the period prescribed by subdivision 2, the
remedy of the aggrieved party (the official or the complainant) lies
not in section 113 but in a proceeding under Article 78 of the New
York State Civil Practice Law and Rules5 5 to review the board's
determination (see section 213). (Where the ethics board files a
determination in the matter after the section 113 suit has been
commenced, the matter should proceed as an Article 78 proceed-
ing to review that determination, provided that the petitioner is
aggrieved by it.)
 Section 113 expressly acknowledges the right of a citizen or offi-
cial to seek the aid of the court in compelling an official to comply
with ethics laws or in determining what obligations those laws im-
pose where the ethics board has failed to act on a complaint within
six months.5 6 Absent that six-month cap, the matter might be left
unresolved for a year or more. This provision does not relieve the
plaintiff or petitioner of the usual requirements that he or she have
standing to sue in the particular instance and that, in an action for
declaratory judgment, an actual controversy exist between the par-
ties. Furthermore, before bringing the lawsuit, the plaintiff or peti-
tioner must exhaust the administrative remedies set forth in
subdivision two, a requirement necessitated by the excessive cost
the municipality might otherwise incur as a result of repeated
lawsuits.
 Section 113 only applies where the plaintiff or petitionerhas filed
a sworn complaint with the ethics board. The section does not ad-
dress the concern of an official against whom the complaint has
been made or of whom an ethics board, on its own initiative, has
undertaken an investigation. (But see discussion of section 212
below.)
 Some municipalities may wish to replace "file" with "issue."

  55. N.Y. CIv. PRAC. L. & R. §§ 7801-7806 (McKinney 1981 & Supp. 1993).
  56. Cf. N.Y. GEN. MUN. LAW § 51 (McKinney 1989).




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 PART B: ADMINISTRATIVE PROVISIONS
Comment.
 As noted above, this, the second part of the model law, contains
the provisions for administering the law (sections 201-218). Gener-
ally, only the municipal attorney and the members of the ethics
board will need to consult this part.

Duties of Municipal Clerk.
 Prior to January 1, 1991, section 806(3) of the General Municipal
Law required the municipal clerk to file certain documents with
the state Comptroller.5 7 Beginning January 1, 1991, the clerk was
to file those documents with the Commission. With the termina-
tion of the Commission on December 31, 1992, the clerk must file
only one of those documents with the state. However, the clerk
must maintain a copy of the other documents on file for public
inspection. These various documents are:
 (1) A copy of the municipality's code of ethics and
 amendments thereto (under section 806, codes of ethics
 are mandatory for counties, cities, towns, villages, and
 school districts);
 (2) A statement that the municipality has established an
 ethics board and the composition of the board (under sec-
 tion 808, an ethics board is optional);
 (3) A copy of the form of annual statement of financial
 disclosure, if any, adopted by the municipality pursuant to
 General Municipal Law section 811;
 (4) A copy of either:
 (i) a statement that the municipality is not subject
 to mandatory annual financial disclosure under Arti-
 cle 18 because it is not a county, city, town, or village
 having a population of 50,000 or more; or
 (ii) a statement that the municipality, though sub-
 ject to annual financial disclosure, has failed to adopt
 an annual financial disclosure statement or to resolve
 to continue an existing statement and is thus subject
 to section 812; or
 (iii) a statement of the date on which the governing
 body of the municipality either adopted a form for an
 annual disclosure statement or resolved to continue

  57. See id. § 806(3) (McKinney Supp. 1993).




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19931 MODEL LOCAL ETHICS LAW

 an existing form for an annual disclosure statement;
 and
 (5) A copy of the municipal clerk's annual report to the
 legislature stating whether the municipality has a code of
 ethics in effect as of the date the report is filed.
Of those five documents, the clerk need only file item (5)-the an-
nual report-with the state. The filing deadline is February 15. A
one-sentence letter will suffice ("As of the date set forth above, the
[County, City, Town, or Village] of - has [or does not have]
in effect a code of ethics within the meaning of section 806 of the
General Municipal Law").

,§ 201. Designation of Officers and Employees Required to File
 Annual Disclosure Statements.
 Within 90 days after the effective date of this local law, and dur-
ing the month of March each year thereafter, the [chief executive
officer or, if none, the chair of the governing body] of the [County,
City, Town, or Village] shall:
 (a) Cause to be filed with the Ethics Board a list of the
 names and offices or positions of all [County, City, Town,
 or Village] officers and employees required to file annual
 disclosure statements pursuant to section 107 of this
 [chapter]; and
 (b) Notify all such officers and employees of their obli-
 gation to file an annual disclosure statement.

§ 201.-Comment.
  If the municipality does not have a chief executive officer, then
the chair of the municipality's governing body should ensure that
the list is compiled and the filers notified.

§ 202. Maintenance of Disclosure Statements.
 1. The [County, City, Town, or Village] clerk shall transmit
promptly to the Ethics Board each transactional and applicant dis-
closure statement filed pursuant to sections 101, 104, 108, and 109
of this [chapter].
 2. The Ethics Board shall index and maintain on file for at least
seven years all disclosure statements filed with the Board pursuant
to sections 101, 104, 107, 108, and 109.




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§ 203. Ethics Board: Establishment; Qualifications of Members;
 Appointment of Members; Term of Office.
 1. There is hereby established an Ethics Board consisting of
five members.
 2. No more than one member of the Ethics Board may be an
appointed officer or employee of the [County, City, Town, or Vil-
lage]. Of the total membership of the Board, no more than two
shall be registered in the same political party.
 3. No Ethics Board member shall hold office in a political party
or be employed or act as a lobbyist or hold elective office in the
[County, City, Town, or Village]. An Ethics Board member may
make campaign contributions but may not participate in any elec-
tion campaign.
 4. Within 60 days after the effective date of this local law, and
no later than December 31 each year thereafter, the [elective chief
executive officer, with the advice and consent of the governing
body of the county, city, town, or village, or, if there is no elective
chief executive officer, the chair of the governing body of the
county, city, town, or village] shall appoint the members of the
Ethics Board.
 5. The term of office of Ethics Board members shall be three
years and shall run from January 1 through December 31, except
that of the members first appointed one member shall serve until
December 31 of the year in which the Board is established, two
shall serve until the second December 31, and two shall serve until
the third December 31.
 6. An Ethics Board member shall serve until his or her succes-
sor has been appointed. Consecutive service on the Ethics Board
shall not exceed two full terms.
 7. The members of the Ethics Board shall not receive compen-
sation but shall be reimbursed for reasonable expenses incurred in
the performance of their official duties.

§ 203.-Comment.
  Section 808 of the General Municipal Law contains provisions
for the establishment and membership of ethics boards.5" How-
ever, the Attorney General's office and the Commission have
taken the position that municipalities' home rule powers permit
them to vary those provisions by local law. 59 Thus, for example,

  58. See N.Y. GEN. MUN. LAW § 808 (McKinney 1986 & Supp. 1993).
  59. See Op. Att'y Gen. 86-44; Op. Att'y Gen. 91-68.




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19931 MODEL LOCAL ETHICS LAW

the municipality may establish an ethics board with no members
who are officers or employees of the municipality.
 The local government ethics bill proposed by the Commission
and its Advisory Board expressly recognized the right of munici-
palities to form joint or regional ethics boards or to contract out
their ethics board to another municipality pursuant to Article 5-G
of the General Municipal Law. 6° Municipalities lacking the re-
sources to establish an individual ethics board may wish to consider
this option, to the extent permitted by current law. Indeed, section
808(2) of the General Municipal Law authorizes county ethics
boards to render advisory opinions to officers and employees of
municipalities wholly or partly within the county with respect to
Article 18 or local ethics laws.61 Section 808(4) authorizes local
ethics boards to refer matters to the county ethics board. 62
 Thus, some cities, towns, and villages lacking their own ethics
board may either have the county ethics board act as the ethics
board for the city, town, or village, or have the county ethics board
take referrals from the local ethics board. For example, a provision
might read: "The Ethics Board, or the [governing body of the City,
Town, or Village], may request the ethics board of the County of
 to investigate, hear, and determine a matter arising
under this [chapter]."
 Section 203 of the model law provides for a five-member ethics
board. Some municipalities may wish to establish a three, seven, or
nine-member board instead. An even number of board members is
inadvisable because of the increased risk of tie votes. In addition,
because a municipal board may only act by the majority vote of its
total authorized membership, 63 municipalities should not make an
 ethics board so large that frequent vacancies or frequent absences
 will occur.
 The terms of office of members should be staggered, to provide
 continuity in the work and philosophy of the board. Municipalities
 may wish to increase or decrease the length of the term of office or
 establish a different year of service than the calendar year. How-
 ever, terms of office should be sufficiently long to ensure the mem-
 bers acquire expertise but not so long as to discourage persons
 from serving on the board. In addition, ethics, board members

 60. N.Y. GEN. MUN. LAW §§ 119-m to 119-o (McKinney 1986 & Supp. 1993).
 61. See N.Y. GEN. MUN. LAW § 808(2) (McKinney 1986).
 62. See id. § 808(4).
 63. N.Y. GEN. CONSTR. LAW § 41 (McKinney 1951).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

should not be allowed to become entrenched on the board; the
model law therefore contains a term limitation.
 A possible alternative provision on terms of office would be the
following:
 The members of the Ethics Board shall be appointed for stag-
 gered terms of five years, commencing on July 1 and expiring on
 June 30, provided, however, that the first Ethics Board ap-
 pointed under this provision shall consist of five members ap-
 pointed for terms expiring respectively on June 30 of the first,
 second, third, fourth, and fifth calendar years following the cal-
 endar year of appointment. Upon expiration of each term, an
 appointment shall be made for the following five-year term.
 The restriction On municipal officials serving on the ethics board
seeks to ensure that the board is as free as possible from pressure
from other officials-co-workers and superiors alike. The restric-
tion on the political make-up of the board aims to strengthen both
the perception and the reality of a board that is nonpartisan. (Sub-
division 2 of section 203 requires at least one member of the board
to be registered in a third party or as an independent. Moreover,
the restriction must be upon party registration not upon some
vague criteria such as "political opinion on state and national is-
sues."' ) Ethics boards must not become political footballs. For
that same reason, the model law restricts the political activities of
ethics board members; such restrictions are quite common around
the country.

§ 204. Ethics Boards: Vacancies.
 When a vacancy occurs in the membership of the Ethics Board,
the vacancy shall, within 60 days, be filled for the unexpired por-
tion of the term in the same manner as the original appointment.
Any person appointed to fill a vacancy on the Ethics Board shall
meet the qualifications set forth in section 203 of this [chapter].

§ 205. Ethics Board: Removal of Members.
 An Ethics Board member may be removed from office in the
same manner in which he or she was appointed, after written no-
tice and opportunity for reply. Grounds for removal shall be fail-
ure to meet the qualifications set forth in section 203 of this
[chapter], substantial neglect of duty, gross misconduct in office,

 64. Carpinelli v. City of Kingston, 175 A.D.2d 509, 510, 572 N.Y.S.2d 777, 779
(App. Div. 1991).




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19931 MODEL LOCAL ETHICS LAW

inability to discharge the powers or duties of office, or violation of
this [chapter].

§ 206. Ethics Board: Meetings.
  At its first meeting each year, the Ethics Board shall elect a chair
from among its members. A majority of the Board shall be re-
quired for the Board to take any action. The chair or a majority of
the Board may call a meeting of the Board.

§ 207. Ethics Boards: Jurisdiction, Powers, and Duties.
  1. The Ethics Board may only act with respect to officers and
employees of the [County, City, Town, or Village].
  2. The termination of a municipal officer's or employee's term
of office or employment with the [County, City, Town, or Village]
shall not affect the jurisdiction of the Ethics Board with respect to
the requirements imposed on him or her by this [chapter].
  3. The Ethics Board shall have the following powers and duties:
 (a) To prescribe and promulgate rules and regulations
 governing its own internal organization and procedures in
 a manner consistent with this [chapter];
 (b) To appoint hearing officers, an executive director, if
 necessary, and such other staff as are necessary to carry
 out its duties under this [chapter], and to delegate author-
 ity to the executive director, if any, to act in the name of
 the Board between meetings of the Board, provided that
 the delegation is in writing and the specific powers to be
 delegated are enumerated and further provided that the
 Board shall not delegate the power to determine viola-
 tions, recommend disciplinary action, impose any civil
 fine, refer any matter to a prosecutor, or render any advi-
 sory opinion. An executive director shall meet the quali-
 fications of an ethics board member as specified in section
 203 of this [chapter];
 (c) To review, index, and maintain on file lists of officers
 and employees, and disclosure statements filed with the
 Board, pursuant to sections 101, 104, 107, 108, 109, 201,
 202, and 208 of this [chapter];
 (d) To review, index, maintain on file, and dispose of
 sworn complaints and to make notifications and conduct
 investigations pursuant to sections 208 and 209;




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 (e) To conduct hearings, recommend disciplinary action,
 assess penalties, make referrals, and initiate appropriate
 actions and proceedings pursuant to section 210;
 (f) To grant waivers pursuant to section 211;
 (g) To render, index, and maintain on file advisory opin-
 ions pursuant to section 212;
 (h) To provide training and education to [County, City,
 Town, or Village] officers and employees pursuant to sec-
 tion 214;
 (i) To prepare an annual report and recommend
 changes to this local law pursuant to section 215;
 (j) To provide for public inspection of certain records
 pursuant to section 216; and
 (k) To select provisions of this [chapter] for reproduc-
 tion and distribution pursuant to section 218.

§ 207.-Comment.
 This model law has been drafted so as to minimize the adminis-
trative burden the law would impose on municipalities. For that
reason, probably only the three or four largest municipalities in the
state would find it necessary under this model law to hire staff for
their ethics boards. All other municipalities could rely upon other
municipal staff members for the occasional secretarial services or
legal advice the enforcement of the law will require.
 However, care must be taken that any municipal staff used by
the ethics board maintain the confidentiality of board actions and
remain free from conflicts of interest and political and other pres-
sures from superiors and peers. In particular, where the municipal
attorney is a political appointee or is otherwise beholden to the
chief elective officer or a majority of the governing body, the ethics
board must have the authority, when necessary, to obtain separate
counsel. For that reason, some municipalities may wish to require,
in their ethics law, funding for such counsel, perhaps with the pro-
viso that the ethics board, if feasible, shall request outside counsel
to serve without compensation and in the public interest (see Buf-
falo Board of Education Code of Ethics65).
 With respect to the authority of a municipality to authorize its
ethics board to conduct investigations and subpoena documents
and witnesses, see the comments to section 209 below.

  65. Unpublished manuscript on file with the Fordham Urban Law Journal.




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1993] MODEL LOCAL ETHICS LAW

 The Commission concluded that counties, cities, towns, and vil-
lages subject to the mandatory annual financial disclosure require-
ments of Article 18 of the General Municipal Law must give to
their ethics boards the same powers and duties enjoyed by the
Commission under General Municipal Law section 813 with re-
spect to the enforcement of those requirements. 66 Specifically,
such municipalities must provide for inspection and review of an-
nual financial disclosure statements, receipt of complaints alleging
ethics law violations, issuance of advisory opinions, extensions of
time to file financial disclosure statements, deletion of information
from copies of disclosure statements made available for public in-
spection, exemptions from filing disclosure statements or from re-
quirements to report items of information, notifications that a filer
has failed to file or has filed a deficient statement, a fifteen-day
period in which to cure such deficiencies, notices of delinquency,
notices of possible ethics law violations and a fifteen-day response
time, investigatory authority (including subpoena power), adjudi-
catory proceedings, notices of no violation and notices of reason-
able cause to believe a violation has occurred, the imposition of
civil penalties up to $10,000 (or, in lieu thereof, referral to the pros-
ecutor as a misdemeanor) for knowingly and wilfully failing to file
an annual financial disclosure statement or knowingly and wilfully
filing a false statement with intent to deceive, and restrictions on
disclosure of ethics board documents.67

§ 208. Review of Lists and Disclosure Statements.
  1. The Ethics Board shall review:
 (a) The lists of officers and employees, prepared pursu-
 ant to section 201 of this [chapter], to determine whether
 the lists are complete and accurate. The Board shall add
 the name of any other officer or employee who the Board
 determines should appear on the list pursuant to section
 107.
 (b) All annual disclosure statements to determine'
 whether any person required to file such a statement has
 failed to file it, has filed a deficient statement, or has filed
 a statement that reveals a possible or potential violation
 of this [chapter].
 (c) All transactional disclosure statements.

 66. See N.Y. GEN. MUN. LAW § 811(1)(d) (McKinney 1989).
 67. See id. §§ 813(9)-(16), (18), 811(1)(c)-(d), 812(6).




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112 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 2. If the Board determines that an annual disclosure statement
or a transactional disclosure statement is deficient or reveals a pos-
sible or potential violation of this [chapter], the Board shall notify
the person in writing of the deficiency or possible or potential vio-
lation and of the penalties for failure to comply with this [chapter].

§ 208.-Comment.
 The only persons whom the ethics board may add to the list of
filers are those persons whom the ethics law itself requires to file.
Some municipalities may wish to include a requirement that the
ethics board consult with the municipality's chief executive before
adding a name to the list and perhaps a requirement that the chief
executive notify the official that he or she is now required to file.
Some municipalities may also wish to require the ethics board to
provide forms for annual and transactional disclosure statements.
 It is not uncommon for an ethics law to set a deadline for the
ethics board to review the list of filers and the annual disclosure
statements themselves. However, the imposition of such deadlines
on a volunteer board should be approached with caution.
 With respect to municipalities subject to mandatory annual fi-
nancial disclosure, see comments to section 207.

§ 209. Investigations.
 1. Upon receipt of a sworn complaint by any person alleging a
violation of this [chapter], or upon determining on its own initiative
that a violation of this [chapter] may exist, the Ethics Board shall
have the power and duty to conduct any investigation necessary to
carry out the provisions of this [chapter]. In conducting any such
investigation, the Ethics Board may administer oaths or affirma-
tions, subpoena witnesses, compel their attendance, and require
the production of any books or records which it may deem relevant
and material.
 2. The Ethics Board shall state in writing the disposition of
every sworn complaint it receives and of every investigation it con-
ducts and shall set forth the reasons for the disposition. All such
statements and all sworn complaints shall be indexed and main-
tained on file by the Board.
 3. Any person filing a sworn complaint with the Ethics Board
shall be notified in writing of the disposition of the complaint.
 4. Nothing in this section shall be construed to permit the Eth-
ics Board to conduct an investigation of itself or of any of its mem-
bers or staff. If the Ethics Board receives a complaint alleging that




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19931 MODEL LOCAL ETHICS LAW

the Board or any of its members or staff has violated any provision
of this [chapter], or any other law, the Board shall promptly trans-
mit to the [governing body of the county, city, town, or village] a
copy of the complaint.

§ 209.-Comment.
 General Municipal Law section 808 contemplates that ethics
boards will be purely advisory bodies with no investigatory or en-
forcement power. However, as noted above, the Attorney Gen-
eral's office and the Commission have taken the position that
municipalities' home rule powers permit them, by local law, to vary
the provisions of section section 808. 68 In particular, in the opinion
of the Attorney General's office, "a local government, through en-
actment of a local law, may grant to its board of ethics the author-
ity to receive complaints alleging violations of ethics regulations, to
investigate those complaints, and to conduct investigations on its
own initiative as to whether violations of ethics standards have oc-
curred. Further, [the Attorney General's office] believe[s] the
board may be given enforcement authority and the local law may
provide for the administering of penalties. 69 In short, "a city, or
any other local government, by local law may grant to its board of
ethics the authority to conduct investigations, subpoena power and
enforcement power."7 0
 The ethics board need not receive a sworn complaint before ini-
tiating an investigation. Some municipalities may wish to change
"sworn complaint" to "written complaint." Some may wish to re-
quire that the official under investigation be notified of the out-
come of the investigation.
 Some municipalities may wish to establish a procedure for a pre-
liminary review of written complaints and to set a deadline for that
review, thereby forcing the ethics board to weed out quickly any
complaints that are clearly unjustified (see Buffalo Board of Edu-
cation Code of Ethics7"). Although protection of the interests of
the official under investigation are important, the setting of any
requirements that impose undue burdens on the volunteer ethics
board must be approached with caution.
 With respect to municipalities subject to mandatory annual fi-
nancial disclosure, see the comments to section 207.

  68. See Op. Att'y Gen. 86-44.
  69. Op. Att'y Gen. 91-68.
  70. Id.
  71. Unpublished manuscript on file with the Fordham Urban Law Journal.




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114 FORDHAM URBAN LAW JOURNAL [Vol. XXI

§ 210. Hearings; Assessment of Penalties; Injunctive Relief.

1. Disciplinary action.
 In its discretion, after a hearing providing for due process proce-
dural mechanisms and subject to any applicable provisions of law
and collective bargaining agreements, the Ethics Board may rec-
ommend appropriate disciplinary action pursuant to subdivision 1
of section 111 of this [chapter]. The recommendation of the Ethics
Board shall be made to the appointing authority or person or body
authorized by law to impose such sanctions. The Board shall con-
duct and complete the hearing with reasonable promptness, unless
in its discretion the Board refers the matter to the authority or per-
son or body authorized by law to impose disciplinary action or un-
less the Board refers the matter to the appropriate prosecutor. If
such a referral is made, the Board may adjourn the matter pending
determination by the authority, person, body, or prosecutor.

2. Civil fine.
  In its discretion and after a hearing providing for due process
procedural mechanisms,'the Ethics Board, pursuant to subdivision
2 of section 111 of this [chapter], may assess a civil fine, not to
exceed $1,500 for each violation, upon any municipal officer or em-
ployee found by the Board to have violated this [chapter]. The
Board shall conduct and complete the hearing with reasonable
promptness. The civil fine shall be payable to the [County, City,
Town, or Village].

3. Damages.
 The [governing body of the county, city, town, or body] may ini-
tiate an action in the court of appropriate jurisdiction to obtain
damages, as provided in subdivision 3 of section 111 of this
[chapter].

4. Civil forfeiture.
  The [governing body of the county, city, town, or village], or the
Ethics Board on behalf of the [County, City, Town, or Village],
may initiate an action or special proceeding, as appropriate, in the
court of appropriate jurisdiction to obtain civil forfeiture, as pro-
vided in subdivision 4 of section 111 of this [chapter].




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1993] MODEL LOCAL ETHICS LAW

5. Debarment.
  The [governing body of the county, city, town, or village], or the
Ethics Board on behalf of the [County, City, Town, or Village],
may initiate an action or special proceeding, as appropriate, in the
court of appropriate jurisdiction for an order of debarment, as pro-
vided in section 112 of this [chapter].

6. Injunctive relief.
 The [governing body of the county, city, town, or village], or the
Ethics Board on behalf of the [County, City, Town, or Village],
may initiate an action or special.proceeding, as appropriate, in the
court of appropriate jurisdiction for injunctive relief to enjoin a vi-
olation of this [chapter] or to compel compliance with this [chap-
ter], -as provided in section 113 of this [chapter].

7. Prosecutions.
  The Ethics Board may refer to the appropriate prosecutor possi-
ble criminal violations of this [chapter]. Nothing contained in this
[chapter] shall be construed to restrict the authority of any prose-
cutor to prosecute any violation of this [chapter] or of any other
law.

8. Limit on Board.
  Nothing in this section shall be construed to permit the Ethics
Board to take any action with respect to any alleged violation of
this [chapter], or of any other law, by the Board or by any member
or staff member thereof.

§ 210.-Comment.
 See discussion of penalties in the comments to section 111 above.
 Some municipalities may wish to grant a cure period (e.g., fifteen
days) to any official who has failed to file an annual disclosure
statement or who has filed a deficient statement. However, such
cure periods; while they provide some protection for officials who
inadvertently fail to file or disclose, undermine the effectiveness of
annual disclosure requirements and impose unnecessary adminis-
trative burdens on the ethics boards.
 School districts that adopt an ethics code based upon this model
law should set forth procedures coordinating hearings under this




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116 FORDHAM URBAN LAW JOURNAL [Vol. XXI

section with disciplinary
 72
 hearings under sections 3020 and 3020-A
of the Education Law.
  If a municipality desires, it may make explicit that any hearings
and recommendations for disciplinary action 73 are subject to section
75 of the New York State Civil Service Law.
  With respect to municipalities subject to mandatory annual fi-
nancial disclosure, see the comments to section 207.

§ 211. Waivers.
 1. Upon written application and upon a showing of compelling
need by the applicant, the Ethics Board may in exceptional circum-
stances grant the applicant a waiver of any of the provisions of sub-
divisions 1 through 9 of section 100, paragraph (i) of subdivision 1
of section 101, section 106, section 107, or section 108 of this [chap-
ter], provided, however, that no such waiver shall permit conduct
otherwise prohibited by Article 18 of the General Municipal Law
of the State of New York.
 2. Waivers shall be in writing and shall state the grounds upon
which they are granted. Within 10 days after granting a waiver, the
Ethics Board shall publish a notice setting forth the name of the
person requesting the waiver and a general description of the na-
ture of the waiver in the official newspaper designated by the
[County, City, Town, or Village] for the publication of local laws,
notices, and other matters required by law to be published. All
applications, decisions, and other records and proceedings relating
to waivers shall be indexed and maintained on file by the Ethics
Board.

§ 211.-Comment.
 A provision for waivers of ethics provisions is dangerous because
it opens the door to the wholesale gutting of local ethics laws, en-
courages political pressure on the ethics board by various individu-
als and groups within the community, and leads to charges of
partiality, all of which undercuts the perception of the ethics board
as an impartial, nonpartisan body of high integrity. For those rea-
sons, many municipalities may wish to forego a provision for waiv-
ers. Other municipalities, concerned over the need to remedy
unnecessary hardship that some of the ethics provisions may im-

  72. N.Y. EDUC. LAW §§ 3020, 3020-A (McKinney 1981).
  73. N.Y. CIv. SERV. LAW § 75 (McKinney 1983 & Supp. 1993).




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19931 MODEL LOCAL ETHICS LAW 117
pose upon an individual official in a particular instance, will wish to
run those risks.
  To minimize the risks, section 211 sets a high standard for grant-
ing a waiver ("compelling need" and "exceptional circumstances"),
restricts waivers to certain specified ethics provisions, and requires
that the waiver be published in the municipality's official newspa-
per. Moreover, the state's Open Meetings Law may require that
the meeting of the ethics board at which the waiver is considered
be held in open session after public notice.74 Some municipalities
may in fact wish to specify in their ethics law that waivers may only
be granted at an open session after public notice or even that they
may only be granted after a public hearing.
 An ethics board may not grant waivers from the requirements of
Article 18 of the General Municipal Law.

§ 212. Advisory Opinions.
 1. Upon the written request of any [County, City, Town, or Vil-
lage] officer or employee, the Ethics Board may render a written
advisory opinion with respect to the interpretation or application
of this [chapter] or of Article 18 of the General Municipal Law of
the State of New York. Any other person may similarly request an
advisory opinion but only with respect to whether his or her own
action might violate a provision of this [chapter] or Article 18.
 2. Advisory opinions and requests for advisory opinions shall
be indexed and maintained on file by the Ethics Board.
 3. Any person aggrieved by an advisory opinion of the Ethics
Board may seek judicial review and relief pursuant to Article 78 of
the Civil Practice Law and Rules of the State of New York.
 4. Any person who has submitted to the Ethics Board a written
request for an advisory opinion may bring a special proceeding
pursuant to Article 78 of the Civil Practice Law and Rules for an
order compelling the Ethics Board to issue the advisory opinion.
In addition to, or in lieu of, such injunctive relief, the person may
seek a judgment in accordance with section 3001 of the Civil Prac-
tice Law and Rules determining the question posed in the request
for the advisory opinion. No action or special proceeding shall be
prosecuted or maintained pursuant to this subdivision unless (a) it
shall appear by and as an allegation in the petition or complaint
that at least six months have elapsed since the filing of the request
and that the Ethics Board has failed to file any determination in

  74. See N.Y. PUB. OFF. LAW §§ 100-111 (McKinney 1988).




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 FORDHAM URBAN LAW JOURNAL [Vol. XXI

the matter and (b) the action or special proceeding shall be com-
menced within ten months after the submission of the request for
the advisory opinion.

§ 212.-Comment.
 To avoid burdening the ethics board with requests for advisory
opinions, the model law permits a private citizen to request an ad-
visory opinion only as to the permissibility of his or her own con-
duct. Any official, on the other hand, may request an advisory
opinion with respect to his own, a subordinate's, a superior's, or
even a colleague's conduct.
 This section addresses formal advisory opinions. An ethic board
remains free at any time to answer questions of anyone with re-
spect to the model law or Article 18.
 Recognizing that persons requesting advisory opinions need
quick answers to their ethics questions, section 212 acknowledges
the right of a person to seek judicial assistance in compelling the
ethics board to respond to a request for an advisory opinion or in
answering the question posed, once six months have elapsed since
submission of the request to the board. This provision obviates, to
some extent, the limitation of section 113 injunctive relief to per-
sons who have filed a sworn complaint. An official against whom a
complaint has been made, or who is otherwise under investigation
by the ethics board, may immediately request an advisory opinion
as to the propriety of his or her conduct and, if that opinion is not
forthcoming within six months, may proceed under section 212.
 Some municipalities may wish to make advisory opinions bind-
ing upon the ethics board. For example, the municipality could in-
clude the following in its ethics code:
 An advisory opinion rendered by the Ethics Board, until and
 unless amended or revoked, shall be binding upon the Ethics
 Board in any subsequent proceeding concerning the person who
 requested the opinion and who acted in good faith, unless he or
 she omitted or misstated a material fact. The opinion may also
 be relied upon by the person, and may be introduced and used
 as a defense, in any civil action brought by the Ethics Board or
 the [County, City, Town, or Village].
The second sentence would result in the ethics board's opinion
binding not only the ethics board but also the municipality itself,
for example in a disciplinary proceeding or in an action for dam-
ages, civil forfeiture, debarment, or injunctive relief. Many munici-




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1993] MODEL LOCAL ETHICS LAW

palities may not wish to give that extensive authority to the ethics
board.

§ 213. Judicial Review.
  Any person aggrieved by a decision of the Ethics Board may
seek judicial review and relief pursuant to Article 78 of the Civil
Practice Law and Rules of the State of New York.

§ 214. Taining and Education.
  The Ethics Board:
 (a) shall make information concerning this [chapter]
 and Article 18 of the General Municipal Law available to
 the officers and employees of the [County, City, Town, or
 Village], to the public, and to persons interested in doing
 business with the [County, City, Town, or Village], and
 (b) shall develop educational materials and an educa-
 tional program for the officers and employees of the
 [County, City, Town, or Village] on the provisions of this
 [chapter] and on Article 18 of the General Municipal
 Law.

§ 214. -Comment.
  Educating officials and the public on Article 18 and the local
ethics laws are among the most important functions of an ethics
board.

§ 215. Annual Reports; Review of Ethics Laws.
 1. The Ethics Board shall prepare and submit an annual report
to the [chief executive officer and governing body of the county,
city, town, or village], summarizing the activities of the Board. The
report may also recommend changes to the text or administration
of this [chapter].
 2. The Ethics Board shall periodically review this [chapter] and
the Board's rules, regulations, and administrative procedures to de-
termine to determine whether they promote integrity, public confi-
dence, and participation in [County, City, Town, or Village]
government and whether they set forth clear and enforceable, com-
mon sense standards of conduct.




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120 FORDHAM URBAN LAW JOURNAL [Vol. XXI

§ 216. Public Inspection of Records; Public Access to Meetings.
  1. The only records of the Ethics Board which shall be avail-
able for public inspection are those whose disclosure is required by
Article 6 of the Public Officers Law of the State of New York or by
some other State or Federal law or regulation.
  2. No meeting or proceeding of the Ethics Board concerning
misconduct, non-feasance, or neglect in office by a [County, City,
Town, or Village] officer or employee shall be open to the public,
except upon the request of the officer or employee or as required
by the provisions of Article 7 of the Public Officers Law or by
some other State or Federal law or regulation.

§ 216.-Comment.
 Any ethics board inquiry, including inquiries into complaints
that later prove meritless, may compromise an official's career. For
that reason, the model law permits an ethics board to disclose only
those records for which disclosure is mandated by the state Free-
dom of Information Law. 75 That law provides that an agency "may
deny access" to certain records.76 The model law makes that denial
mandatory.
 Similarly, the model law does not allow an ethics board to open
its meetings to the public, except as required by the state Open
Meetings Law or if requested by the target of the investigation,
consistent with that law.77 The Open Meetings Law provides that a
public body "may conduct" an executive session to discuss "the
medical, financial, credit or employment history of a particular per-
son or corporation, or matters leading to the appointment, employ-
ment, promotion, demotion, discipline, suspension, dismissal or
removal of a particular person or corporation. '78 The model law
makes such executive sessions mandatory, except on request of the
official under investigation.
 However, in the Commission's opinion, in counties, cities, towns,
and villages subject to the mandatory financial disclosure require-
ments of sections 810-813 of the General Municipal Law, the only
records an ethics board may open to the public with respect to such
disclosure are those records identified in section 813(18)(a) of that
law. The Commission took the position that under section
 75. N.Y. PUB. OFF.LAW §§ 84-90 (McKinney 1988 & Supp. 1993).
 76. Id. § 87(2).
 77. See id. § 105 (McKinney 1988). Cf CRIM. PROC. LAW § 190.85 (McKinney
1993).
 78. N.Y. PUB. OFF. LAW § 105(1)(f) (McKinney 1988).




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19931 MODEL LOCAL ETHICS LAW

813(18)(b), ethics boards in those communities, with respect to such
annual disclosure, are exempt from the Open Meetings Law. The
Commission concluded that section 813(18) applies to those coun-
ties, cities, towns, and villages, because of the language of section
811(1)(c) and (d). The Committee on Open Government dis-
agreed with these conclusions and believed that the Open Meetings
Law and the Freedom of Information Law govern local ethics
boards in all instances.
 The model law intends that disclosure statements be made avail-
able immediately upon the request of any person. Because the
statements do not contain confidential information, it is unneces-
sary to redact any information from them before disclosing them to
the public. Some municipalities may in fact wish to require that
disclosure statements, whenever practicable, be made available im-
mediately upon request.
 To prevent the circulation of an officials' disclosure statements
(particularly in an altered form), the Commission adopted a regu-
lation prohibiting the photocopying of statements on file with the
Commission.79 However, the Freedom of Information Law, which
expressly provides for copying as well as for public inspection, may
preclude a municipality from adopting such a regulation in a local
ethics law. s°

§ 217. Miscelaneous provisions.
 1. No existing right or remedy shall be lost, impaired, or af-
fected by reason of this [chapter].
 2. Nothing in this [chapter] shall be deemed to bar or prevent a
present or former [County, City, Town, or Village] officer or em-
ployee from timely filing any claim, account, demand, or suit
against the [County, City, Town, or Village] on behalf of himself or
herself or any member of his or her family arising out of personal
injury or property damage or any lawful benefit authorized or per-
mitted by law.
 3. If any provision of this [chapter] is held by a court of compe-
tent jurisdiction to be invalid, that decision shall not affect the va-
lidity and effectiveness of the, remaining provisions of this
[chapter].

 79. N.Y. COMP. CODEs R. & REGS. tit. 9, § 9978.6(c) (1991); see also John v. New
York State Ethics Comm'n, 581 N.Y.S.2d 882 (App. Div. 1992) (upholding similar
regulation of State Ethics Commission).
 80. See N.Y. PUB. OFF. LAW § 87(2) (McKinney 1988 & Supp. 1993).




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122 FORDHAM URBAN LAW JOURNAL [Vol. XXI

§ 218. Distribution and posting.
 1. Within 90 days after the effective date of this section, and
thereafter as appropriate, the Ethics Board shall transmit to the
 [chief executive officer or, if none, the chair of the governing body]
of the [County, City, Town, or Village], in a form suitable for post-
ing, copies of those provisions of this [chapter] which the ethics
board deems necessary for posting in the [County, City, Town, or
Village]. Within ten days after receipt of those copies, the [chief
executive officer or, if none, the chair of the governing body] shall
cause the copies to be posted conspicuously in every public build-
ing under the jurisdiction of the [County, City, Town, or Village].
 2. Within 90 days after the effective date of this section, and
thereafter as appropriate, the Ethics Board shall transmit to the
[chief executive officer or, if none, the chair of the governing body]
of the [County, City, Town, or Village], in a form suitable for distri-
bution, copies of those provisions of this [chapter] which the ethics
board deems necessary for distribution to the officers and employ-
ees of the [County, City, Town, or Village]. Within ten days after
receipt of those copies, the [chief executive officer or, if none, the
chair of the governing body] shall cause the copies to be distributed
to every officer and employee of the [County, City, Town, or Vil-
lage], and made readily available to the public. Every [County,
City, Town, or Village] officer or employee elected or appointed
thereafter shall be furnished a copy of those provisions within ten
days after entering upon the duties of his or her position.
 3. Failure of the [County, City, Town, or Village] to comply
with the provisions of this section or failure of any [County, City,
Town, or Village] officer or employee to receive a copy of the pro-
visions of this [chapter] shall have no effect on the duty of compli-
ance with this [chapter] or on the enforcement of its provisions.

§ 218.-Comment.
 Section 807 of the General Municipal Law requires that Article
18 be posted in its entirety. Section 806(2) requires that any ethics
law adopted by a municipality be distributed to every officer and
employee of the municipality. However, failure to post or dis-
tribute does not affect the enforcement of those laws or the duty of
officials to comply with them.
 The model law permits the ethics board to select provisions of
the local law for distribution and posting. For example, the board
of ethics may decide that only the Code of Ethics itself (section




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1993] MODEL LOCAL ETHICS LAW 123

100) should be posted but that sections 100 to .113 should be dis-
tributed to the municipality's officers and employees.

Section 5. Effective Date.
 This local law shall take effect immediately upon filing in the
office of the Secretary of State and in compliance with all applica-
ble provisions of law.




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124 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 APPENDIX A

 SAMPLE ANNUAL DISCLOSURE STATEMENT
 UNDER THE LOCAL GOVERNMENT ETHICS
 BILL
 (S.6157/A.8637)

 ANNUAL DISCLOSURE STATEMENT
 [MUNICIPALITY] OF
 FOR 199


Last Name First Name Initial


Title Department or Agency


Work Address Phone No.

If the answer to any of the following questions is "none," please so
indicate.
1. REAL ESTATE. List the address of each piece of property that
you, your spouse, or other relative own or have a financial interest
in. List only real estate that is in the [municipality] of
 or within one mile of the boundary of the [mu-
nicipality] of . "Relative" means your spouse,
child, step-child, brother, sister, parent, or a person you claimed as
a dependent on your latest state income tax return.




 Page 187
 19931 MODEL LOCAL ETHICS LAW

 Name of
 Family Relationship Address of Type of
 Member to You Real Estate Investment

 1 Main St.,
 John Jones Father Teatown Owns]




 2. YOUR OUTSIDE EMPLOYER OR BUSINESS. List the
 name of any outside employer or business from which you receive
 compensation for services rendered or goods sold or produced or
 of which you are a member, officer, or employee. Also include any
 entity in which you have an ownership interest, except a
 corporation of which you own less than five percent of the
 outstanding stock. Identify the type of business, such as a
 partnership, corporation, self employment, or a sole proprietorship
 and list your relationship to the employer or business (i.e., owner,
 partner, officer, director, member, employee, or shareholder).
 Name of
 Employer or Nature of Type of Your
 Business Business Business Relationship

 Monument Real Estate
[E.g.: Realty Agency Partnership Employee]




 Page 188
 126 FORDHAM URBAN LAW JOURNAL [Vol. XXI

 3. YOUR SPOUSE'S EMPLOYER OR BUSINESS. List the
 information in question 2. for your spouse.
 Name of
 Employer or Nature of Type of Spouse's
 Business Business Business Relationship
 Pottery
[E.g.: Pottery Ltd. Manufacturer Corporation Treasurer]




 Date:

 Signed:




 Page 189
Amend the current ARTICLE VIII, MISCELLANEOUS PROVISIONS, by renumbering it
ARTICLE IX, MISCELLANEOUS PROVISIONS and by adding the following new ARTICLE
VIII, CIVILIAN POLICE REIEW BOARD, as follows:

Article VIII: CIVILIAN POLICE REVIEW BOARD

Section 1. Purposes, composition, term, appointment, first board, qualifications,
vacancies, removal, compensation.

 (a) Purposes. For the purposes of increasing public trust and confidence in the Portland
 Police Department; discouraging police misconduct; helping police officers to feel
 vindicated in the eyes of their fellow officers and of the public; reassuring the public that
 complaints are investigated thoroughly and fairly; helping the public to understand the
 nature of police work; providing oversight of Internal Affairs; defusing public hostility
 toward police officers; reducing the likelihood of lawsuits against the City; and
 improving police practices and procedures in interactions with the public, there shall be a
 civilian police review board.

 (b) Composition, term, appointment, first board.
 The civilian police review board shall be composed of nine (9) or more members who
 shall hold office, except as hereinafter provided, for a term of three (3) years unless
 appointed to fill a vacancy, and until their successors are appointed and qualified, but in
 no case longer than 120 days after expiration of their term. A minimum of four (4)
 voting members shall be appointed by the city council, one (1) voting member shall be
 appointed by the mayor and three (3) non-voting members shall be appointed by the city
 council. A majority of the total number of voting members appointed shall constitute a
 quorum of the board and the board shall act by a majority of voting members present and
 voting.

 For the first board appointed following its creation, the city council and mayor shall first
 select from the current members of the police citizen review subcommittee, currently
 established by City ordinance, which subcommittee shall be supplanted by the board, in
 making appointments to the board. On the first board, two voting members shall serve
 for a one (1) year term, two voting members shall serve for a two (2) year term, and the
 voting member appointed by the mayor, shall serve for a three (3) year term; and one
 non-voting member shall serve for a one (1) year term, one non-voting member shall
 serve for a two (2) year term, and one non-voting member shall serve for a three (3) year
 term. Thereafter, all members shall serve for a term of three (3) years. No person shall be
 appointed to, nor serve, more than three (3) consecutive full terms or nine (9) consecutive
 years, whichever is greater, on the board. Following appointment of the first board, the
 city council shall exercise its power of appointment only after the city clerk has published
 a notice announcing the availability of board positions, describing the responsibilities
 thereof and soliciting applications by qualified persons, in a newspaper of general
 circulation at least 15 days before city council acts to appoint to the board.




{P1994819.1} 1


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 (c) Qualifications. All candidates for the civilian police review board must be at least 18
 years of age and must be residents of the City for a period of at least three (3) months
 prior to the date on or before which board member is to be seated.

 (d) Vacancies. A vacancy in the membership of the civilian police review board member
 shall occur by a death, resignation or removal. A vacancy in the office of civilian police
 review board member shall be filled by the appointing authority for that office, and the
 person appointed to fill the vacancy shall serve the remainder of that term. Any board
 member who subsequent to appointment becomes disqualified or ineligible to serve shall
 resign, and failure to do so shall constitute “cause” under (e) below.

 (e) Removal. Any civilian police review board member may be removed from office by the
 city council for cause, after notice and the opportunity to be heard. Failure to disclose
 grounds for disqualification under (c) above shall disqualify the person from service on
 the civilian police review board and shall constitute “cause” for removal.

 (f) Training. Prior to assuming their duties hereunder, civilian police review board members
 shall attend training by city staff as to the board’s duties and responsibilities, applicable
 state and local law, ordinances and rules and regulations, accepted police practices and
 the police department’s internal affairs investigation process.

 (g) Confidentiality. Each member of the civilian police review board is obligated to
 maintain the confidentiality of all information and documents either provided to or
 reviewed by them, in accordance with state law. Failure to maintain such confidentiality
 will be constitute “cause” for removal from the board under (c) above. All reports and
 requests for disclosure of any information shall be referred to the corporation counsel for
 review prior to release.

Section 2. Powers and duties.

 (a) Complaints. The civilian police review board shall receive all complaints brought by
 civilians regarding the Portland police department and shall refer such complaints to the
 Portland police internal affairs department. Members of the police department may bring
 complaints to the board, to internal affairs, or to command; the board shall refer any such
 complaints it receives to internal affairs. Portland police department command shall
 review internal affairs draft findings on complaints and shall submit its report on the
 conclusions of any investigation on complaints to the board for consideration no more
 than fourteen (14) days after the findings become final and after any final disciplinary
 action has been taken and all appeals exhausted or settled or the case has been closed
 with no disciplinary action. Neither police officers nor their representatives may file
 complaints regarding disciplinary actions or personnel matters under this subsection.

 (b) Review, reports. The board shall review all final investigation reports submitted by
 internal affairs and/or command staff under Section 2. (a) above for due process issues,
 including but not limited to, issues of fairness, thoroughness, objectivity, and timeliness.
 Although it shall have access to individual internal affairs reports in order to review

{P1994819.1} 2


 Page 191
 investigative methods and procedures, all reports of the board issued to address
 complaints filed under Section 2. (a) above shall be done in such a manner that particular
 complainants, witnesses and officers are not personally identifiable. Reports of the board
 shall be made available to the public to the extent consistent with the State Freedom of
 Access Act, 1 M.R.S.A. Sec. 401 et seq.

 (c) Appeals. The city council shall by ordinance adopt an appeal process consistent with
 federal, state, and local law for persons aggrieved by a report issued by the civilian police
 review board on complaints filed with the Board under Section 2. (a) above to appeal that
 Board report to the city council or such other body as the city council may designate or
 create for a hearing, in executive session where required, and for the issuance of an
 advisory opinion which shall not be legally binding on the city, the police department,
 police officers, or individuals, and which hearing and advisory opinion shall not include
 or address any disciplinary proceedings. Neither police officers nor their representatives
 may file appeals regarding disciplinary actions or personnel matters under this
 subsection.

 (d) Policy. The civilian police review board shall be able to make policy recommendations
 to the mayor, the city council and the chief of police.

 (e) Annual report, communications, additional duties. The civilian police review board
 shall hold a public hearing at least annually to receive comments upon the community
 complaint process and to engage City residents as to the board’s purposes and goals, and
 shall prepare and present to the mayor, city council, and chief of police an annual report,
 including but not be limited to, policy and funding recommendations, and the number of
 complaints submitted to the board and the number of complaints resolved during the
 previous year. Any recommendations made by the board regarding the police department
 shall be based on policy evaluations, may be assigned by the city council and mayor to
 staff for research, and may be enacted or implemented. The board also may, in its
 discretion, address the city council on an as-needed basis. The city council and mayor
 may add to the board’s duties by ordinance at any time.

 (f) Board Officers. The civilian police review board shall annually elect one of its members
 to serve as chair, and shall annually elect one of its members as vice-chair, to serve in the
 absence of the chair. The corporation counsel or his or her designee shall serve as
 secretary to the board and shall furnish any necessary administrative assistance to that
 board.
 (g) Procedural rules. The civilian police review board shall make suitable procedural rules,
 from time to time, for the conduct of its duties. Proposed rules shall be submitted to the
 city council and shall become effective only when approved by the city council. All such
 rules shall be recorded in the office of the city clerk.

Section 3. Funding, staff, resources.

 (a) Funding, staff. The civilian police review board shall be funded as needed by the city
 council through the annual budget. Such funding shall include professional staff,

{P1994819.1} 3


 Page 192
 including but not limited to a “Community Liaison” and a “Police Liaison” familiar with
 Portland police department standard operating procedures. The city council shall decide
 whether the community liaison and police liaison positions are part-time or full-time
 and/or whether the duties of these positions may be assigned to existing employees. The
 community liaison shall serve at the direction of the board and shall ensure the public is
 aware of the methods for filing complaints, and shall assist the board with carrying out its
 duties, powers and functions, conducting outreach and with other duties as the board may
 assign. The board may request additional funding from the city council at any time. The
 police liaison may be the same person/position as the “technical advisor” described in
 Section 3(b) below.

 (b) Resources. The city shall make available to the board the services of a technical advisor,
 as needed by the board. The technical advisor may be used for the purposes of training;
 briefing the board on accepted police practices, applicable law and issues relevant to the
 discharge of the citizen review function; and educating the board on aspects of the
 internal investigation process. The technical advisor shall be retained by the city
 manager after consultation with the chief of police, representatives of the police unions
 and the chair of the board. Any person who presently maintains any business or
 professional affiliation with the police department shall be disqualified from serving as
 technical advisor. The city shall further make available all internal affairs investigation
 reports and police documents relevant to such investigations which are necessary for the
 board to conduct its duties hereunder. In no case shall the board have access to police
 officers’ personnel records except to the extent that they are part of an internal affairs
 investigation report or are considered a public document under the Maine Freedom of
 Access Act.

 (c) Coordination. The board shall work in conjunction with the City’s communication
 department, internal affairs, and any other city departments or offices to effectuate all
 powers and duties granted to it in this charter and any additional duties assigned to it by
 the city council or mayor.




{P1994819.1} 4


 Page 193

City of Portland Charter Commission
 Meeting Minutes
 March 30, 2022 (Remote via Zoom)

1. Zoom Information

 The meeting was conducted as a remote meeting by Zoom videoconference in accordance
 with the Commission’s Remote Participation Policy and State law (1 M.R.S. §403-B).

2. Call to Order

 Chair Kebede called the meeting to order at 6:20 p.m. (The meeting was delayed by
 technical difficulties.)
 Commissioners present were Barowitz, Buxton, Chann, Eglinton, Houston, Kebede,
 Lizanecz, O’Brien, Sheikh-Yousef, Stewart-Bouley, Washburn, Waxman. (Quorum
 established)

3. Review and Approval of Minutes

 On motion by Commissioner Washburn, seconded by Commissioner Eglinton, the
 Commission voted to approve the draft meeting minutes of March 23, 2022 by roll-call vote
 of 12-0.

4. Deliberation and Vote on Governance Models

 Commissioners deliberated and conducted straw poll votes on reforms to the basic structure
 of Portland’s government. There was consensus to proceed with the slides that described the
 overlap between the most recent proposals and to discuss differences. The provisions in the
 Chann-O’Brien proposal were colored in blue font and provisions from the proposal from
 Buxton, Washburn, Sheikh-Yousef, and Kebede were colored in purple font.

 Commissioners Buxton and Stewart-Bouley suggested they were not sure if Commissioners
 are as much in agreement as may think, so will look at this slide-by-slide.

 Commissioner Eglinton asked if whatever elements of a governance model that the
 Commission votes will come back for a public hearing on a single framework?


{P2005386.1} 1
 Commissioners Barowitz and Waxman agreed – this exercise is more of a set of straw polls
 and the public will have an opportunity to weigh in.

 Using the charts under “Two Plans for Portland – An Overlap Analysis,” the Commissioners
 conducted straw polls on the topic headings and concepts included therein:
 1) Mayor as Chief Executive
 Chann-O’Brien (Blue) - 2 in favor (Chann, O’Brien)
 Chann-O’Brien Amended (Purple) – 5 in favor (Washburn, Buxton, Houston, Kebede,
 Sheikh-Yousef)
 Commissioner O’Brien expressed his concern that “supervision” is a human resources
 term; mayor should conduct annual performance review of manager – a high-level
 oversight, not involved in day-to-day operations of manager. Commissioner Eglinton
 doesn’t support either, but may support a modified proposal if there is to be an executive
 mayor. Commissioner Waxman of similar mind; concerned with mayor’s control over
 city manager – feels like an overreach.
 a. “Oversight and supervision” – underlying aim is to flesh out the concept of “chief
 executive officer.” Chair Kebede explained this is meant to capture the shift from
 Council-Manager to Council-Mayor, with professional management available. He
 envisions a more constrained chief executive mayor than say in Westbrook, who has
 the power to hire and fire. Commissioners Washburn and Sheikh-Yousef agreed.
 Commissioner O’Brien agreed on implementation of council policy as being an
 executive task, and drew the line at micromanaging day-to-day management.
 b. Mayor is chief executive officer (but difference as to how constrained that authority
 is). The Chief Executive Officer (CEO) supervises the Chief Operations Officer
 (COO), but does not manage the rest of City staff. (8 in favor – Washburn, Barowitz,
 Chann, O’Brien, Sheikh-Yousef, Houston, Kebede, Buxton; 2 opposed – Waxman,
 Eglinton; and 2 abstain – Lizanecz, Stewart-Bouley.)
 c. Mayor oversees the implementation of Council policy (Same vote as b. above; 8-2-2)
 d. Guardrails around the supervisory powers of the mayor over the COO/Manager
 (Administration – what flexibility? Traditional notion of supervision – direct
 supervision?) There are between 15 and 20 city departments. Chair Kebede said it is
 common for mayor and manager to jointly supervise department heads. He suggested
 that the COO is expert in execution and puts mayor’s vision into motion. He said he
 understands concerns over imperious leadership. Commissioner Buxton said she
 supports a model of equals among manger and department heads to uphold expertise.
 Commissioner O’Brien expressed concern with prospect of department heads having
 two bosses. There was consensus that City staff is managed exclusively by
 department heads (12-0). Chair Kebede suggested using term Chief Operating Officer
 (COO) rather than similar term of “City Manager” or “City Administrator” because
 City Manager is such a loaded term at present.
 e. Mayor has supervisory role over the COO and they will work on a coordinated
 approach to management of department heads. (7 in favor – Barowitz, Buxton,
 Houston, O’Brien, Kebede, Sheikh-Yousef, Washburn; 2 opposed – Waxman, Chann;
 and 2 abstain – Eglinton, Lizanecz.)




{P2005386.1} 2
 f. Title for the COO – something other than City Manager. (8 in favor – Barowitz,
 Buxton, Houston, O’Brien, Kebede, Eglinton, Washburn, Waxman; and 2 opposed –
 Stewart-Bouley, Chann.)

 2) Council as Legislative Branch
 a. Mayor to preside as chair of City council. Commissioners O’Brien and Chann
 supported the concept – like the Vice President and the U.S. Senate. Chair Kebede
 did not support – retaining mayor on City council blurs meaning of chief executive
 officer; there is no division of executive and policy roles. Adding both lawmaking
 power and leadership to a mayor with executive power is too much. A clear
 separation of powers will avoid concentration of power in mayor.
 Commissioner Chann expressed that a mayor who is the champion for the City and a
 leader establishing a vision will have time to also preside over the City Council, and
 while this may muddy division of branches, it provides clarity as to who is political
 leader of the City. If mayor runs on policy, they have to have an outlet.
 Commissioner Sheikh-Yousef questioned whether it would be awkward for executive
 mayor to also chair Council and set agenda – the mayor could use veto authority
 instead. Commissioner Barowitz stated that the person leading the legislative body –
 the council – should be a member of that body. Commissioner O’Brien said he does
 not want to put faith in “they will collaborate” because in Portland, the Mayor and
 City Manager “butted heads” for 8 years. He also asked who would would be the
 political leader of the City – executive mayor or Council president? He said he wants
 to make clear who is the political leader of the City. He added that not having the
 mayor chair the Council would potentially set up an adversarial relationship between
 the mayor/executive branch and Council/legislative branch, since every at-large
 councilor will want to be mayor.
 b. Should Mayor preside as council chair?
 Yes – 6 (O’Brien, Eglinton, Chann, Waxman, Lizancez, Stewart-Bouley)
 No – 6 (Kebede, Washburn, Sheikh-Yousef, Barowitz, Buxton, Houston)
 Commissioner Kebede noted that if the mayor is not part of council, can have the veto
 authority like a president or the governor, that can be overridden by council –
 majority or supermajority
 Commissioner Chann expressed that this is why he preferred acting on a package;
 now that a strong executive mayor has been adopted, anything added to mayor’s
 powers looks like too much power; he has lost faith in this process.
 Commissioner O’Brien offered a concept of mayor as facilitator of the council
 meeting, with no vote, the council sets agendas, and the mayor and executive
 committee assign subcommittee membership. Commissioner Kebede was willing to
 support a substantially unempowered mayor as council chair if that mayor is
 executive mayor.
 Yes – 9 (Buxton, O’Brien, Sheikh-Yousef, Eglinton, Houston, Kebede, Lizanecz,
 Chann, Stewart-Bouley)
 No – 2 (Barowitz, Washburn)
 Abstain – 1 (Waxman)
 c. Veto Power of Mayor
 Yes – 3 (Barowitz, O’Brien, Sheikh-Yousef)

{P2005386.1} 3
 No – 3 (Washburn, Eglinton, Chann)
 Abstain – 4 (Buxton, Houston, Lizanecz, Kebede)
 Commissioners agreed there needed to be more discussion on the topic.
 Commissioner O’Brien suggested a veto for policy and ordinances and budget veto as
 to entire budget. Commissioner Barowitz would like to see a line-item veto. The
 Commission agreed to table this topic for now.
 3) Budgetary Powers
 Commissioner O’Brien said he envisions a 2-step process: mayor presents budget and
 council adopts it, with mayor directing the COO in the preparation of the budget and
 communicates the budget to council. Mayor does not “get into the weeds” with the
 budget.
 Chair Kebede both envisions mayor overseeing the drafting of the budget and presenting
 it to Council to consider and adopt. He said that many charters say the mayor will prepare
 the budget, but that does not mean that the mayor goes into detail.
 With agreement in concept, the Commission considered this proposal: the mayor directs
 the COO in the preparation of the budget and communicates it to the council for
 consideration and adoption.
 Yes – 9 (O’Brien, Barowitz, Kebede, Buxton, Lizanecz, Houston, Eglinton, Stewart-
 Bouley, Washburn)
 No – 1 (Waxman)
 a. Veto power for budget (leave veto for policy for another day)
 Commissioner O’Brien noted that this is the one place a mayor can put a platform in
 effect if they cannot vote – the only leverage mayor has is the veto. Chair Kebede was
 persuaded by Commissioner O’Brien.
 Mayor may veto city budget and council may override veto by 2/3 vote:
 10 – Yes (O’Brien, Barowitz, Kebede, Buxton, Lizanecz, Houston, Eglinton, Stewart-
 Bouley, Chann, Sheikh-Yousef)
 1 – No (Washburn)
 1 – Abstain (Waxman)

5. Public hearing, deliberation, and vote on Code of Ethics proposal from Procedures
 Committee

 Commissioner Lizanecz summarized the proposal, which includes a Charter amendment to
 require a Code of Ethics Ordinance to be prepared by an Ethics Commission and enacted by
 City Council, with Ethics Commission to provide non-binding guidance and advisory
 opinions and to interpret the Charter.

 Public Comment was taken. Deliberation was postponed to the next meeting of the
 Commission.

6. Public hearing, deliberation, and vote on School Budget Process Proposal From
 Education Committee

 The Commission tabled this item until the next meeting.



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7. Public hearing, deliberation, and vote on Capital Improvement Program Budget
 Process Proposal from Education Committee

 The Commission tabled this item until the next meeting.

8. Vote on Final Language for Citizen Police Oversight Board

 On motion by Commissioner Chann, seconded by Commissioner Sheikh-Yousef, the
 Commission approve the final language of the Citizen Police Oversight Board proposal by
 roll-call vote of 11-0 (Waxman was absent).

9. New Business

 Commissioner O’Brien said that he would like to bring the concept of an Office of
 Information as a proposal before the Commission at a future meeting.

10. Adjourn

 On motion by Commissioner Washburn, seconded by Commissioner Sheikh-Yousef, the
 Commission approved a motion to adjourn by roll-call vote of 11-0 (Waxman was absent).
 The meeting adjourned at 10:41 p.m.




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