Ethics Codes for Local Governments, Part 2: Processing Complaints, Imposing Discipline

In Part One of this series on local ethics code, we talked about whether your agency should adopt its own Ethics Code. And, if you decided you wanted to do so, or if you have an existing code you want to review, we discussed the following: to whom does it apply? What conduct is regulated by the code? Does there have to be an actual violation or just an appearance of one? Finally, will your code would allow for advisory opinions?

In Part Two of this series, I’ll talk about items that help when dealing with a complaint that someone in your agency has violated your local code, including an identifiable process for investigating a complaint, clear penalties for violations, and an appeals process.

An Identifiable Process

Your ethics code should have a simple process that addresses how you will handle the distinct phases of a complaint: intake, initial evaluation, investigation, hearing, determination, and appeal.

Intake

Be clear as to where (or with whom) complaints are filed. For electeds, it could be with the agency clerk, mayor, mayor pro-tem, or chair or president of the board. For employees, it could be the agency clerk, mayor, agency counsel, human resources director, or any department head or manager. Will you accept an anonymous complaint? Your code must clearly state if it requires a complainant to identify themselves.

Initial evaluation

Because not all fact patterns rise to the level of being an ethics code violation, some agencies provide for an initial review that assumes all of the facts to be true and then evaluates whether those facts are a violation of the agency’s code. If it is not a violation the person conducting the initial evaluation can dismiss the charge. An alternative to this process allows the person doing the initial evaluation to determine whether a violation is “inadvertent” or “minor” and to dismiss the charge if so. If you are going to have an initial review, consider who will do it. For example, if you’ve appointed a hearings officer, they can do it. If you have a board or commission, one member or the chair can do it.

Some agencies have their attorney do the initial review. Remember that an attorney cannot represent a client in a case where the attorney is a fact witness: In other words, if the agency’s attorney is doing an investigation or making an initial determination, then that attorney will not be able to provide additional advice to elected officials on the matter.

Investigation

Some codes require the complainant to provide all of the supporting evidence of a violation, others provide for an investigation. If your code provides for an investigation, specify who is to conduct it. Some agencies handle the investigation in-house, using staff, an ethics officer, or a member of an ethics board. Others will hire a third-party independent investigator, and some agencies use a combination of both approaches.

However, unless criminal activity is suspected, the best practice is to not have your police department do an administrative investigation.

Determination

Once the facts are gathered, someone has to decide if those facts support a conclusion that the code has been violated. Again, this can be the hearings officer or the board. General principles of due process say that the person accused of violating the code (i.e., the respondent) is entitled to a hearing at which they can present evidence and cross-examine witnesses. But agencies differ as to when that hearing is available. In some cases, the agency issues a preliminary decision and the respondent is entitled to a hearing after that. In others, the agency conducts a hearing before issuing a decision.

The decision can take several different forms. Some agencies only provide for a determination of facts and reserve the right to decide whether there has been a code violation to the chief executive or the governing body (depending on who the respondent is). Some combine fact-finding and a conclusion of whether there has been a violation. Still others ask for all of this as well as a recommendation for action.

Your code should include a decision-making process that is correct for your agency type. For example, in council-manager code cities, state law requires the council to deal with staff through the city manager. Therefore, it would be inappropriate for council to act on an ethics violation by an employee.

Identifiable Penalties for Violations

Your code should also include a clear statement of the penalties for violating the ethics code. RCW 42.23.050 says that contracts made in violation of that chapter are void and imposes other penalties. Your local code should also set out the penalties for violations.

A few notes of caution here. First, enacting a code that provides for discipline of employees represented by a collective bargaining agreement has to be negotiated with the affected unions. Second, several agencies make a violation of their local ethics code a criminal violation. If this is the only remedy under your ethics code, you may be forced to choose between not enforcing your code or eventually charging your employee with a crime. Criminal charges also create a higher burden of proof — “beyond a reasonable doubt” — instead of a lower standard for a civil violation. Third, agencies are limited in their ability to “punish” elected officials. While RCW 42.12.010 and certain other statutes provide for an automatic forfeiture of office under certain circumstances, in most cases the only way to remove an elected officer is through a recall petition. Many jurisdictions provide for a written or verbal reprimand or removal of the member of the legislated body from internal or external committees. Remember that a governing body generally cannot prevent an elected member from attending meetings of the body or from voting.

Agencies should carefully consider the purpose behind the penalty — Is it to punish the offender or to provide a general deterrent? With a clear purpose in mind you can tailor your remedies to allow for consistency and flexibility. For employees, have the remedies be consistent with those for violating other personnel policies. For electeds, coordinate the penalties with those in your council or board rules for violation of those rules.

An Appeals Process

Your code should also specify how, when, and to whom decisions can be appealed. Consider structuring your process to allow for an administrative appeal process. For employees, you might choose to have a hearing officer, ethics board, or a manager make the initial decision, but the appeal can go to your chief executive officer. For elected/appointed officers, you might have a hearing officer or ethics board make the initial decision and the appeal goes to the council or agency board.

Also, your code should specify which decisions are appealable, and by whom. If you have someone making an initial determination, can that be appealed? If so, only by the complainant or can the respondent also appeal? While you want your process to be transparent, remember that an ethics complaint is an adversarial process. You only want people with standing — that is, someone directly affected — to be able to affect the course of the hearing.

Note that you do not have to have an administrative appeal for the final decision. If you do not provide for an administrative appeal the complainant and the respondent still have some recourse through the court system.

Conclusion

Whether or not you decide to adopt your own ethics code you should remember to include ethics training on your training calendar for elected officials as well as employees. Scheduling this training at the same time as your agency’s public records training is a good way to meet that requirement. MRSC’s Ethics and Conflicts of Interest and Local Codes of Ethics pages have more detail on this subject as well as examples you can refer to when reviewing your code.