Ethics Codes for Local Governments, Part 1: Considerations, Scope, and Applicability

Does your local agency have its own code of ethics? In this two-part blog series on ethics code for local governments we look at how adopting a code or reviewing an existing code can save you time and trouble before you need to apply it to a specific complaint.

In Part One of this series we will discuss the pros and cons of adopting a local code, if you don’t have one. And, if you decide to adopt a local code or just want to review your existing one, we’ll begin with a discussion about who you want your code to apply to, and what behavior you want your local code to cover.

Is a Local Ethics Code Needed?

Good question! The answer is “No.” Chapter 42.23 RCW, which regulates conflicts of interest for municipal officers, already applies to all local government agencies, but Chapter 42.23 only applies to “municipal officers.” RCW 42.23.020’s definition doesn’t necessarily include all employees. If you adopt a local ethics code you can specify whether it applies to elected officials, appointees to boards and commissions, agency employees, or some combination of all of these. Also, 42.23 also only applies to a limited number of situations and local codes can be broader.

Also, Chapter 42.23 is absolute in some of its restrictions, but local codes can be adjusted to the needs of the agency. For example, RCW 42.23.070(2) prohibits covered persons from accepting any gift “connected with or related to” their job. A strict reading would prohibit a municipal officer from having a cup of coffee and a donut at a meeting with a contractor in the field. In my experience no one has been swayed in their decision-making by a particularly tasty apple fritter. So, if you have your own ethics code, you can allow for more practical provisions (as long as they don’t contradict the statute).

Finally, state law does not include a process for evaluating complaints against agency officers or employees. This can leave agencies scrambling to figure out how to process a complaint after it has been received. Adopting a local code allows you to establish a process before you need one.

What Should Be in my Local Ethics Code?

If you’ve decided that your agency needs a local code you will have to decide what specific provisions work best for you; these suggestions are my own, based on my experience drafting, training, and advising on Department of Defense, county, and city ethics codes. Your local code should include a clear statement, a narrow focus, a clear standard, an option to access an advisory opinion, a description of the process, and an identification of penalties.

A clear statement

A clear statement addresses to whom a code applies. If you mean it to apply to everyone, your code should say so; “All elected officials, appointees to [agency] advisory boards and commissions, and [agency] employees.”

A narrow focus

Since there are other statutes related to bribery, general misconduct, and elections misconduct that apply to public officers, try to avoid having a violation of these laws also be a violation of your ethics code. If you adopt the bribery statute into your ethics code, you’ve now created a second offense based on the same conduct. For example, an employee could be accused of bribery and a violation of your ethics code,  and you’d probably want the police to investigate the charge of bribery, not whomever you’ve designated to investigate violations of your ethics code.

Also, agencies should think hard about whether to include “courtesy” restrictions in your ethics code — i.e., restrictions that require agency officials and employees to treat constituents with courtesy and respect. Your constituents rightfully expect such behavior but having that enforced through your ethics code may not be the best way to deal with that issue. Having your courtesy requirements addressed in a council or board rules of procedure for electeds and in a personnel manual or employee handbook for your employees allows your local ethics code to focus on conflicts of interest. With regards to employees, having a process for ethics violations that is consistent with your process for other policy violations will make evaluating and resolving complaints more effective.

Some cities that include courtesy expectations in their ethics codes specifically differentiate between prohibited conduct, such as using agency resources for personal use, and aspirational conduct, such as cooperation, coordination, and courtesy.

A clear standard

Will your code require proof of an actual violation or will it include the appearance of one? Some agencies include both. For example, Seattle’s Code of Ethics prohibits conduct “that is, or would to a reasonable person appear to be,” a violation of several provisions. This has led to a body of Advisory Opinions by the city’s Ethics and Elections Commission about what a “reasonable person” would think about the conduct. The state’s Executive Ethics Board has a similar body of opinions.

Access to an advisory opinion

Your code can also include a section noting whether someone can request an opinion about whether a proposed action would violate the agency’s ethics code, which is known as an advisory opinion. Some agencies allow for an advisory opinion, and of those that do, some also say that if a person follows an advisory opinion, they will not be charged with a violation of the ethics code (even if the opinion was wrong). If you allow for advisory opinions, be clear as to who issues them and whether the opinions provide a “safe harbor” or not.

Now that your agency has decided who is subject to your local code and what conduct it regulates the next step will be to decide how to process a complaint of a violation of that code. We’ll cover that in Part Two of this series. Meanwhile, 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.