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Brown Act ethics training notes

The following text is a verbatim, cut-and-paste from an online Brown Act ethics training course I recently took. In light of the new Planning  Commissions being recently seated, the public may find these points intersting to know, in terms of cimmissioners being accountable to ethical standards.

The public expects and deserves its public servants to serve the public’s interest— not private or political interests.

Research by the Institute for Global Ethics indicates that we all believe certain values are worthwhile: this is the basic five moral capacities, you exercise them, but content of values is different

• Fairness
• Loyalty
• Compassion
• Trustworthiness
• Responsibility
• Respect

These values transcend nationalities, cultures and religions.

Commissioners, electeds, appointees:

·  Remember that your role is first and foremost to serve the community.

·  Be truthful with your fellow elected officials, the public and others—even when it involves speaking hard or unwelcome truths.

·  Avoid any actions that would cause the public to question whether your decisions are based on personal interests instead of the public’s interests.

 

Fair? Make decisions based on the merits of the issues.

Explicitly state that your personal opinions do not represent the agency’s position and do not allow the inference that they do.

·  Search for value from diverse opinions and build consensus.

·  Be approachable and open-minded.

·  Listen carefully and ask questions that add value to discussions.

In short, public service ethics is not only about doing the right thing, but also about the public’s confidence that indeed the right thing has been done. Public servants must maintain a high standard of ethical conduct that promotes public confidence that public officials’ actions are motivated solely by the public’s interests.

At some point in your service as a public official, you will likely face two common types of ethical dilemmas:

• Personal Cost Ethical Dilemmas. This involves situations in which doing the right thing may or will come at a significant personal cost to you or your public agency. These also can be known as “moral courage” ethical dilemmas. (costs of friendship)
• Right-versus-Right Ethical Dilemmas. This type of ethical dilemma involves those situations in which there are two conflicting sets of “right” values. (this is where the content of values comes in, and where it is highly likely that people will have pre-formed rigid opinions)

Of course, some dilemmas are a combination of both: a conflict between competing sets of “right” values (right-versus-right) and a situation in which doing the right thing involves personal or political costs.

In public service, your responsibility to do what you believe is best for your community trumps the value of loyalty. The ethical approach, and what the public expects you to do, is what is best for your community.

Federal law gives the public the right to “honest public service” from their officials.

The concept is that public servants owe a basic duty of loyalty and honesty to the public.

This duty is violated when a public official makes decisions or takes actions that are motivated by the official’s personal interests, as opposed to the interests of those the official serves.

Public servants should not benefit financially from their positions.

Be very wary if someone is proposing that you do something for them in exchange for their doing something for you—a concept sometimes referred to as a quid pro quo (which is Latin for “this for that”).

The threshold to be concerned about is if someone has paid you $500 or more in the last year.

Note that it doesn’t matter that Perry wants to urge a position that will actually harm his economic interests. The concept is that, if a decision-maker has some “skin” in a decision, the public’s trust in the decision-making process is promoted if the decision-maker steps aside from the decision-making process.

Nola files a complaint with the Fair Political Practices Commission that (recused official in the audience) George was influencing the decision with his eye rolling and groans.

If the supervisor concludes the public will think the supervisor is motivated by something other than the public’s interests, the supervisor might be wise to sit these discussions out and reflect upon these appearances in advance of accepting future gifts.

This means public officials may not use agency equipment, supplies or staff time for political purposes. “Political purposes” includes activities to promote or defeat candidates for public office; they also include campaign activities promoting the passage or defeat of ballot measures.

The mass mailing restriction prohibits elected officials from using public dollars to advertise their names and accomplishments to voters.

The rationale for this prohibition is to eliminate practices that favor incumbent elected officials and to create a level playing field in elections.

The Fair Political Practices Commission has ruled that the mass mailing prohibition means a city council member’s business could not run an ad in a chamber of commerce newsletter.

The city council member was an accountant, whose firm name included his last name (as well as two others). The problem was that the chamber of commerce was partially funded with city funds, and the ad would have included the firm name as well as a picture of all 12 members of the firm.

There is an adage about one’s life being an open book. Nowhere is this truer than for public officials and their finances.

The bottom line is when you become a public official, the public gets to learn a great deal about your financial life. The voters created these disclosure requirements when they approved the Political Reform Act in 1974.

Operating under the requirements of open meeting laws can sometimes be frustrating for local officials. Confining discussions among decision-makers to public meetings can seem inefficient and an unnatural way to communicate with colleagues.

It may be helpful to acknowledge that the goal of open meeting laws is not efficiency. If efficient decision-making were the priority, one wouldn’t even need a multi-member decision-making body.

Having a multi-member decision-making body suggests a different set of values. This includes the value of having a group of individuals with a variety of experiences, backgrounds and viewpoints come together to develop a consensus. Consensus is developed through debate, deliberation, and give and take. This process can sometimes take a long time and is very different in character than the individual-decision-maker model.

The open meeting laws reflect another value judgment, the value of having the public present to monitor and participate in the decision-making process. This doesn’t occur if decision-makers reach decisions when the public isn’t present. Therefore, absent a specific (and legally authorized) reason to keep the public out of the meeting, the public should be allowed to monitor and participate in the decision-making process.

If one accepts the philosophy behind the creation of a multi-member body and the reservation of a seat at the table for the public, many of the particular open meeting rules become much easier to accept and understand. Simply put, some efficiency is sacrificed for the benefits of greater public participation and trust in public agency decision-making processes.

The open meeting laws specifically provide that members of the public do not have to identify themselves in order to attend a public meeting.

In most instances, people are happy to give their names in order to lend credibility to their views and to facilitate the distribution of information.

However, the decision to disclose one’s name and address lies with the person attending the meeting.

Copies of the agenda materials and other documents distributed to the governing body must also be made promptly available to the public.

In addition to observing the meetings of government boards and commissions, the public has the right to request public records from any government agency. These materials include any writing that was prepared, owned, used, or retained by a public agency. They include documents, computer data, facsimiles, and photographs.

Although there are exceptions to a public agency’s duty to disclose records, a safe practice is to assume that virtually all materials involved in one’s service on the governing body—including e-mails—are public records subject to disclosure.

The public can make records requests orally or in writing. Many agencies assist the public by providing a form to request records.

The goal is for the agency to provide the records within the 10 days; if it cannot, it must provide a good faith estimate as to when it can (keeping in mind the general obligation to provide the records promptly).

In particular, front counter personnel should not ask individuals making public records requests to provide identification or to give a reason for the request.

As a general matter, elected officials and other leaders within an agency can encourage the agency to voluntarily make public records available (for example, records and information that are of potential widespread public interest). Agency websites can be a good tool for this purpose. This underscores the agency’s commitment to transparency.

The public’s perception that decisions are made fairly is an important element of the public’s confidence and trust in government and individual public officials.

Although California statutes largely determine when public officials must disqualify themselves from participating in decisions, common law (judge-made law) and some constitutional principles still require a public official to exercise his or her decision-making powers free from personal bias—including biases that have nothing to do with financial gain or losses.

In addition, constitutional due process principles require a decision-maker to be fair and impartial when the decision-making body is sitting in what is known as a “quasi-judicial” capacity. (The city Planning Commission is quasi-judicial.)

Finally, community relations—and the public’s views of an official’s responsiveness—are seriously undermined when it appears an official is not listening to the input being provided by the public.

Even if you disagree with the views being offered, a good practice (legally and ethically) is to treat the speaker with the same respect you would like to be treated with if the roles were reversed.

Moreover, at least one court has ruled that officials’ perceived inattentiveness during a hearing violated due process principles.

Lesson: Non-financial interests can make participation in a decision improper if one has a personal interest in the outcome that causes observers to reasonably question the decision-maker’s ability to be fair and impartial.

Don’t take positions on issues that may come before you in your quasi-judicial capacity until you hear all the evidence and arguments at the hearing on the issue.

Be guided by principles of fairness and merit-based decision-making in contracting decisions (not personal relationships).

As already discussed, one analytic strategy is to think in terms of ethical values.

Some important values relating to public service include responsibility, trustworthiness, respect and fairness. Assess decisions you have to make against these standards.

What decision, behavior or course of action will best promote the public’s trust in my leadership and that of my agency?

As both Dr. Martin Luther King Jr. and Gandhi have observed, the means are the end in a democracy and good ends cannot come from questionable means.

Public officials are stewards of the public’s trust. Consequently, officials’ conduct in office affects both the public’s trust in their institutions and in their leaders. Conscientious attention to laws and principles of public service ethics will help you as a leader pursue both good means and good ends.

 

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