City Managers Department Meeting

Beyond Bell: An Ethical Journey Wednesday, January 30, 2013 3:15 – 4:45 pm

1. ICMA: Code of Ethics and Guidelines 2004 2. ICMA: Ethics Program Report 2012 3. ICMA: Creating an Ethical Culture: Leaders Checklist 4. University of Santa Clara, Markkula Center: Government Ethics: Values, Compliance or Both? 5. ILG: Ethics Law Principles for Public Servants: Key Things to Know 6. ILG: Transparency in Local Government: Protecting Your Community Against Corruption 7. ILG: Money and Public Service: A Possible Blind Spot? 8. ILG: Public Agency Attorney Ethics

ICMA Code Of Ethics With Guidelines

The ICMA Code of Ethics was adopted by the ICMA membership in 1924, and most recently amended by the membership in May 1998. The Guidelines for the Code were adopted by the ICMA Executive Board in 1972, and most recently revised in July 2004.

The mission of ICMA is to create excellence in local governance by developing and fostering professional local government management worldwide. To further this mission, certain principles, as enforced by the Rules of Procedure, shall govern the conduct of every member of ICMA, who shall:

1. Be dedicated to the concepts of effective and Credentials. An application for employment or for democratic local government by responsible ICMA’s Voluntary Credentialing Program should be elected officials and believe that professional complete and accurate as to all pertinent details of general management is essential to the education, experience, and personal history. achievement of this objective. Members should recognize that both omissions and inaccuracies must be avoided.

2. Affirm the dignity and worth of the services rendered Professional Respect. Members seeking a by government and maintain a constructive, management position should show professional creative, and practical attitude toward local respect for persons formerly holding the position or for government affairs and a deep sense of social others who might be applying for the same position. responsibility as a trusted public servant. Professional respect does not preclude honest differences of opinion; it does preclude attacking a Guideline person's motives or integrity in order to be appointed Advice to Officials of Other Local Governments. to a position. When members advise and respond to inquiries from elected or appointed officials of other local Reporting Ethics Violations. When becoming governments, they should inform the administrators of aware of a possible violation of the ICMA Code of those communities. Ethics, members are encouraged to report the matter to ICMA. In reporting the matter, members 3. Be dedicated to the highest ideals of honor and may choose to go on record as the complainant or integrity in all public and personal relationships in report the matter on a confidential basis. order that the member may merit the respect and confidence of the elected officials, of other officials Confidentiality. Members should not discuss or and employees, and of the public. divulge information with anyone about pending or completed ethics cases, except as specifically Guidelines authorized by the Rules of Procedure for Enforcement Public Confidence. Members should conduct of the Code of Ethics. themselves so as to maintain public confidence in their profession, their local government, and in their Seeking Employment. Members should not seek performance of the public trust. employment for a position having an incumbent administrator who has not resigned or been officially Impression of Influence. Members should conduct informed that his or her services are to be terminated. their official and personal affairs in such a manner as to give the clear impression that they cannot be 4. Recognize that the chief function of local improperly influenced in the performance of their government at all times is to serve the best official duties. interests of all of the people.

Appointment Commitment. Members who accept Guideline an appointment to a position should not fail to report Length of Service. A minimum of two years for that position. This does not preclude the possibility generally is considered necessary in order to render a of a member considering several offers or seeking professional service to the local government. A short several positions at the same time, but once a bona tenure should be the exception rather than a recurring fide offer of a position has been accepted, that experience. However, under special circumstances, it commitment should be honored. Oral acceptance of may be in the best interests of the local government an employment offer is considered binding unless the and the member to separate in a shorter time. employer makes fundamental changes in terms of Examples of such circumstances would include refusal employment. of the appointing authority to honor commitments concerning conditions of employment, a vote of no they shall not endorse candidates, make financial confidence in the member, or severe personal contributions, sign or circulate petitions, or problems. It is the responsibility of an applicant for a participate in fund-raising activities for individuals position to ascertain conditions of employment. seeking or holding elected office. Inadequately determining terms of employment prior to arrival does not justify premature termination. Elections in the Council-Manager Plan. Members may assist in preparing and presenting materials that 5. Submit policy proposals to elected officials; provide explain the council-manager form of government to them with facts and advice on matters of policy as the public prior to an election on the use of the plan. If a basis for making decisions and setting assistance is required by another community, community goals; and uphold and implement local members may respond. All activities regarding ballot government policies adopted by elected officials. issues should be conducted within local regulations and in a professional manner.

Guideline Presentation of Issues. Members may assist the Conflicting Roles. Members who serve multiple governing body in presenting issues involved in roles--working as both city attorney and city manager referenda such as bond issues, annexations, and for the same community, for example--should avoid similar matters. participating in matters that create the appearance of a conflict of interest. They should disclose the potential 8. Make it a duty continually to improve the member's conflict to the governing body so that other opinions professional ability and to develop the competence may be solicited. of associates in the use of management techniques. 6. Recognize that elected representatives of the people are entitled to the credit for the establishment Guidelines of local government policies; responsibility for policy Self-Assessment. Each member should assess his execution rests with the members. or her professional skills and abilities on a periodic basis. 7. Refrain from all political activities which undermine public confidence in professional administrators. Professional Development. Each member should Refrain from participation in the election of the commit at least 40 hours per year to professional members of the employing legislative body. development activities that are based on the practices identified by the members of ICMA. Guidelines Elections of the Governing Body. Members should 9. Keep the community informed on local government maintain a reputation for serving equally and affairs; encourage communication between the impartially all members of the governing body of the citizens and all local government officers; local government they serve, regardless of party. To emphasize friendly and courteous service to the this end, they should not engage in active participation public; and seek to improve the quality and image in the election campaign on behalf of or in opposition of public service. to candidates for the governing body. 10. Resist any encroachment on professional Elections of Elected Executives. Members should responsibilities, believing the member should be not engage in the election campaign of any candidate free to carry out official policies without for mayor or elected county executive. interference, and handle each problem without discrimination on the basis of principle and justice. Running for Office. Members shall not run for elected office or become involved in political Guideline activities related to running for elected office. They Information Sharing. The member should openly shall not seek political endorsements, financial share information with the governing body while contributions or engage in other campaign activities. diligently carrying out the member's responsibilities as set forth in the charter or enabling legislation. Elections. Members share with their fellow citizens the right and responsibility to vote and to voice their 11. Handle all matters of personnel on the basis of opinion on public issues. However, in order not to merit so that fairness and impartiality govern a impair their effectiveness on behalf of the local member's decisions, pertaining to appointments, governments they serve, they shall not participate in pay adjustments, promotions, and discipline. political activities to support the candidacy of individuals running for any city, county, special district, school, state or federal offices. Specifically,

Guideline administrator or prior to any official action by the Equal Opportunity. All decisions pertaining to governing body that may affect such investments. appointments, pay adjustments, promotions, and discipline should prohibit discrimination because of Personal Relationships. Member should disclose race, color, religion, sex, national origin, sexual any personal relationship to the governing body in any orientation, political affiliation, disability, age, or marital instance where there could be the appearance of a status. conflict of interest. For example, if the manager's spouse works for a developer doing business with the It should be the members' personal and professional local government, that fact should be disclosed. responsibility to actively recruit and hire a diverse staff throughout their organizations. Confidential Information. Members should not disclose to others, or use to further their personal 12. Seek no favor; believe that personal interest, confidential information acquired by them in aggrandizement or profit secured by confidential the course of their official duties. information or by misuse of public time is dishonest. Private Employment. Members should not engage in, solicit, negotiate for, or promise to accept private Guidelines employment, nor should they render services for Gifts. Members should not directly or indirectly solicit private interests or conduct a private business when any gift or accept or receive any gift--whether it be such employment, service, or business creates a money, services, loan, travel, entertainment, conflict with or impairs the proper discharge of their hospitality, promise, or any other form--under the official duties. following circumstances: (1) it could be reasonably inferred or expected that the gift was intended to Teaching, lecturing, writing, or consulting are typical influence them in the performance of their official activities that may not involve conflict of interest, or duties; or (2) the gift was intended to serve as a impair the proper discharge of their official duties. reward for any official action on their part. Prior notification of the appointing authority is appropriate in all cases of outside employment. It is important that the prohibition of unsolicited gifts be limited to circumstances related to improper influence. Representation. Members should not represent any In de minimus situations, such as meal checks, some outside interest before any agency, whether public or modest maximum dollar value should be determined private, except with the authorization of or at the by the member as a guideline. The guideline is not direction of the appointing authority they serve. intended to isolate members from normal social practices where gifts among friends, associates, and Endorsements. Members should not endorse relatives are appropriate for certain occasions. commercial products or services by agreeing to use their photograph, endorsement, or quotation in paid or Investments in Conflict with Official Duties. other commercial advertisements, whether or not for Member should not invest or hold any investment, compensation. Members may, however, agree to directly or indirectly, in any financial business, endorse the following, provided they do not receive commercial, or other private transaction that creates a any compensation: (1) books or other publications; (2) conflict with their official duties. professional development or educational services provided by nonprofit membership organizations or In the case of real estate, the potential use of recognized educational institutions; (3) products confidential information and knowledge to further a and/or services in which the local government has a member's personal interest requires special direct economic interest. consideration. This guideline recognizes that members' official actions and decisions can be Members' observations, opinions, and analyses of influenced if there is a conflict with personal commercial products used or tested by their local investments. Purchases and sales which might be governments are appropriate and useful to the interpreted as speculation for quick profit ought to be profession when included as part of professional avoided (see the guideline on "Confidential articles and reports. Information").

Because personal investments may prejudice or may appear to influence official actions and decisions, members may, in concert with their governing body, provide for disclosure of such investments prior to accepting their position as local government

Promoting Ethics in Local Government: A Year in Review Fiscal Year 2012

Executive Summary A detailed case monopolized much of the enforcement process during FY12 but added to the overarching theme of the year – the need be a professional always. While it might seem second nature to be professional members can stray away from such conduct without even breaking the law. Remaining professional allows ICMA members to earn and maintain the trust of the public, staff, and elected officials. As FY12 ethics reviews show, ICMA members acted unprofessional and unethical by failing to inform their manager-colleagues about discussions they had with elected officials from another community; engaging in political activities and running for office; failing to serve two years with a local government; and, of course, violating the law.

Ethics Enforcement ICMA enforces the Code of Ethics through a formal review process administered by a peer-review body, the ICMA Committee on Professional Conduct (CPC). The confidential process provides a member with the opportunity to respond to the complaint and for the appointment of a fact-finding committee where additional documentation and information is required. At the conclusion of the review process, the CPC can decide to close a case where no violation has occurred; issue a private censure for an ethics violation; or recommend that the ICMA Executive Board publicly censure and/or expel, bar or revoke the credential of a member who has violated the Code of Ethics. New in FY12, the CPC can recommend to the Executive Board that a member’s membership be suspended for a period not to exceed five years and any member barred or expelled from membership are so for life.

The ICMA Committee on Professional Conduct reviewed 9 ethics complaints filed against ICMA members. The reviews resulted in:

• 1 public censure and expulsion; • 1 public censure and membership bar; • 5 private censures; and • 2 closed cases

Conduct that resulted in a public censure and expulsion

►Running for elected office • An administrator successfully ran for an elected seat on the governing body of the community where he lived and formerly served as administrator. (Tenet 7)

1

Conduct that resulted in a public censure and membership bar

► Professional respect, contact with elected officials; length of service • While working for another local government, a member communicated about city business with a council member and mayoral candidate in his former community; made comments criticizing the incumbent manager’s performance; and did not inform his colleague about any of the conversations. The member also sent his résumé to the mayoral candidate shortly before an election. The member also failed to serve a two-year tenure after he resigned his position after serving only nine months in order to return to the his previous community as the manager. (Tenets 2, 3, and 4)

Conduct that resulted in a private censure

► Driving under the influence • A member pled no-contest to a misdemeanor charge of driving under the influence. (Tenets 2 and 3) ► Supporting a candidate for elected office • A manager made a financial contribution to a congressional candidate and also made two contributions to a political organization. (Tenet 7) • A manager attended a gubernatorial candidate’s kickoff event and made a financial contribution to the campaign. (Tenet 7) ► Length of service • After serving approximately 16 months, a manager resigned to take a preferred position in another state. (Tenet 4) ► Violation of the law • A member pled no-contest to reckless driving. (Tenets 2 and 3)

Working with Fact-Finding Committees Fact-finding committees appointed by the state association president to assist in gathering information on cases serve as an arm of the CPC and play an invaluable role in the ethics process. ICMA staff worked with one fact-finding committee, appointed at the request of the CPC, to investigate a member’s conduct that spanned across Missouri and Illinois.

Ethics Advice and Resources ICMA staff responded to 45 ethics inquiries requests from members for confidential advice and assistance in resolving ethics dilemmas. Challenging ethical issues are publicized in the ethics column of the monthly PM Magazine.

Members seeking ethics advice are encouraged to contact ICMA Director of Ethics Martha Perego at 202-962-3668 or [email protected] or Jared Dailey, Program Manager, at 202-962-3557 or [email protected].

2

Creating an Ethical Culture: Checklist for Leaders

Be the Champion  Walk the talk: set the tone and do what you say – you are always being watched  Start the dialogue about ethics . Schedule time in meetings with your staff to discuss issues . Using reports of unethical conduct from newspapers, ICMA’s ethics column in PM or case studies from other sources is a great way to launch a discussion of appropriate public sector values and conduct. . Talk to your staff about ethical dilemmas you have faced and how you made the decision  Develop a code of ethics, involving people from throughout the organization – do not have your attorney write it  If you have a code of ethics, discuss its contents, whether it needs updating  Include ethics discussions in orientations for the governing body and boards and commissions as well as in presentations to community stakeholders  Talk with your colleagues about ethical challenges – yours and theirs

Hire for and Institutionalize Ethical Values  Include ethics questions in interviews and testing processes  Conduct thorough background checks and look for evidence of ethical lapses  Ensure arms length relationships with vendors  Create a safe way for employees to get their questions answered and to get advice about ethical dilemmas  Include ethics issues in performance evaluations, so that “how” work is done is as important as “what”  Hold managers and supervisors accountable for ethical behaviors of their employees  Recognize employees for doing the right thing  Conduct training for employees, managers and supervisors on what is expected and how to deal with difficult situations that arise  Discuss ethical values and expectations in new employee orientations – the chief executive should be there to present his or her expectations  Know about resources that can help with training and problem solving (such as ICMA)  Conduct assessments to learn about your organization’s ethical culture  Conduct periodic audits to uncover ethical vulnerabilities – and institute practices to minimize those vulnerabilities

It Starts With You!

©ICMA

Ethics Law Principles for Public Servants: KEY THINGS TO KNOW

Note that the following are not statements of law, but rather principles the law is designed to achieve.

The goal in providing this list is to identify the kinds of issues addressed by public service ethics laws.

If an issue arises under these principles, public officials should consult agency counsel.

Personal Financial Gain Laws Perk Issues: Including Compensation, Generally speaking, California law says public officials: Use of Public Resources and Gift Laws Generally speaking, California law says public officials: »»Cannot request, receive or agree to receive anything of value or other advantages in exchange »»Receive limited compensation for their service to for a decision. the public. »»Must disclose their financial interests to the public. »»Cannot receive compensation for speaking, writing »»Must disqualify themselves from participating in an article or attending a conference. decisions that may affect (positively or negatively) »»Are reimbursed for only those expenses allowed in their financial interests. agency expense reimbursement policies because »»Cannot have an interest in a contract made by those expenses have a demonstrable public purpose their agency. and necessity. »»Cannot be involved in agency decisions that affect »»Cannot use public agency resources (money, travel an official’s future employer. expenses, staff time and agency equipment) for personal or political purposes. »»Cannot lobby their agency for pay for a year following their departure from the agency. »»Cannot send mass mailings at public expense. »»Cannot make gifts of public resources or funds.

For more information on these principles, see www.ca-ilg.org/EthicsLaws. »»Must disclose all gifts received of $50 or more Fair Process Laws and Merit-Based and may not receive gifts aggregating to over Decision-Making $440 (2013-14 proposed) from a single source in Generally speaking, California law says a given year. public officials: »»May only accept free trips and travel expenses »»Cannot receive loans from those within the agency under limited circumstances. or with whom the agency contracts; loans from »»May not accept free or discounted transportation others must meet certain requirements. from transportation companies. »»Cannot engage in vote-trading. »»May not use campaign funds for personal benefits »»Have a responsibility to assure fair and competitive not directly related to a political, legislative or agency contracting processes. governmental purpose. »»Cannot participate in quasi-judicial proceedings in Transparency Laws which they have a strong bias with respect to the Generally speaking, California law says public officials: parties or facts. »»Must conduct public hearings in accordance with »»Disclose their economic interests when they take fair process principles. office, annually while they are in office and when they leave office. These economic interests include »»Cannot participate in decisions that will benefit their such kinds of interests as: sources of income, immediate family (spouse or domestic partner and property ownership, investments, certain family dependent children). members’ interests, business interests, loans, »»Cannot simultaneously hold certain public offices or contracts and gifts received. engage in other outside activities that would subject »»Disclose information about who has agreed to them to conflicting loyalties. commit significant resources ($5,000 or more) to »»Cannot participate in entitlement proceedings— legislative, governmental or charitable purposes at such as land use permits—involving campaign an elected official’s request. contributors (does not apply to elected bodies). »»Disclose campaign contributions. »»Cannot solicit campaign contributions of more than »»Conduct the public’s business in open and $250 from permit applicants while an application is publicized meetings, except for the limited pending and for three months after a decision circumstances when the law allows (if sitting on an appointed body). closed sessions. »»Cannot solicit agency employee support for their »»Allow the public to participate in meeting, political causes. listenening to the public’s views before decisions »»Cannot retaliate against those who whistle-blow. are made. »»Allow public inspection of documents and records generated by public agencies, except when non- disclosure is specifically authorized by law. »»Disclose gifts given to the public agency and how they are ultimately used. Public Official’s Conflict of Interest Checklist

KEY CONCEPTS ✓✓A public agency’s decision should be based solely on ✓✓Personal Finances. The official or official’s what best serves the public’s interests. immediate family’s (spouse/domestic partner and ✓✓The law is aimed at the perception, as well as the reality, dependent children) personal expenses, income, that a public official’s personal interests may influence a assets, or liabilities. decision. Even the temptation to act in one’s own interest ✓✓Contract. A contract that the agency is considering could lead to disqualification, or worse. entering into, in which the official or a member of the ✓✓Having a conflict of interest does not imply that a public official’s family may have an interest (direct or indirect). official has done anything wrong; it just means that the ✓✓Business Investment. An interest in a business that official has financial or other disqualifying interests. the official or the official’s immediate family (spouse/ ✓✓Violating the conflict of interest laws could lead to domestic partner and dependent children) have a direct monetary fines and criminal penalties. Don’t take or indirect investment worth $2000 or more. that risk. ✓✓Related Business Entity. An interest in a business that is the parent, subsidiary or is otherwise related to a BASIC RULE business where the official: A public official may not participate in a decision – including • Has a direct or indirect investment worth $2000 or trying to influence a decision – if the official has financial or, in more; or some cases, other strong personal interests in that decision. When an official has an interest in a contract, the official’s • Is a director, officer, partner, trustee, employee, agency may be prevented from even making the contract. or manager. ✓✓Business Entity Owning Property. A direct or indirect WHEN TO SEEK ADVICE FROM ownership interest in a business entity or trust of the AGENCY COUNSEL official’s that owns real property. The rules are very complex. A public official should talk with agency counsel 1) early and often, 2) when an action by the ✓✓Campaign Contributor. A campaign contributor of public agency, 3) may affect (positively or negatively), 4) any the official (applies to appointed decision-making of the following: bodies only). ✓ ✓✓Income. Any source of income of $500 or more (including ✓Other Personal Interests and Biases. The official has promised income) during the prior 12 months for the important, but non-financial, personal interests or biases official or official’s spouse/domestic partner. (positive or negative) about the facts or the parties that could cast doubt on the official’s ability to make a fair ✓✓Business Management or Employment. An entity for decision. which the official serves as a director, officer, partner, trustee, employee, or manager. WHAT WILL HAPPEN NEXT? Agency counsel will advise the official whether 1) the ✓✓Real Property. A direct or indirect interest in real official can participate in the decision and, 2) if a contract property of $2000 or more that the official or official’s is involved, whether the agency can enter into the contract immediate family (spouse/domestic partner and at all. Counsel may suggest asking either the Fair Political dependent children) have, including such interests Practices Commission or the State Attorney General to as ownership, leaseholds (but not month-to-month weigh in. tenancies), and options to purchase. Be especially alert when any of these are located within 500 feet of the EVEN IF IT’S LEGAL, IS IT ETHICAL? subject of the decision. The law sets only minimum standards. Officials should ask ✓✓Gift Giver. A giver of a gift of $440 (2013-14 proposed themselves whether members of the public will question amount) or more to the official in the prior 12 months, whether officials should act solely in the public’s interest. including promised gifts. If they might, offiicals should consider excusing themselves voluntarily from that particular ✓✓Lender/Guarantor. A source of a loan (including a loan decision-making process. guarantor) to the official. Beyond the Law: Ethics and Values The Institute is grateful to the following firms for their support for the intitute’s work in »»Ethics is what one ought to do in a given public service ethics: situation. It’s the kind of conduct that would make the world a better place if everyone Aleshire & Wynder, LLP engaged in it. Best Best & Krieger »»The law provides only minimum standards for Burke Williams & Sorensen, LLP ethical conduct. Just because a course of action Hanson Bridgett LLP is legal, doesn’t make it what one ought to do. Kronick Moskovitz Tiedemann & Girard »»What one ought to do is typically tied to a series of values: Liebert Cassidy Whitmore – Trustworthiness – Compassion Meyers Nave – Respect – Loyalty Renne Sloan Holtzman Sakai LLP – Responsibility – Fairness Richards, Watson & Gershon For more information on this topic, see www.ca-ilg.org/LeadingValues.

The Institute for Local Government is the nonprofit research affiliate of the League of California Cities and the California State Association of Counties.

Its mission is to promote good government at the local level.

The Institute’s current program areas include: »»Local Government 101 »»Public Engagement »»Public Service Ethics »»Sustainability

Ethics Law Principles for Public Servants: Key Things To Know www.ca-ilg.org/EthicsPrinciples ©2012 by The Institute for Local Government 1400 K Street, Suite 205 Sacramento, CA 95814 (916) 658-8208 • FAX (916) 444-7535 • www.ca-ilg.org

PUBLIC SERVICE ETHICS

Transparency In Local Government: Protecting Your Community Against Corruption www.ca-ilg.org/document/transparency-local-government-protecting-against-corruption December 2010

QUESTION Thanks to Our Like many officials, we watched in dismay last Supporter summer as media coverage of excessive compensation and pension levels in some The Institute for Local communities caused our local press and residents to Government (ILG), which is a think that such pay packages are the norm, not the 501(c)(3) organization, receives exception. We posted our compensation on our funding from a variety of sources.

website to assure the community that our agency’s Its public service ethics program compensation levels are significantly more moderate relies on support from than Bell’s. publications sales, training fees and private donations. Even so, the effects of the scandal are still taking a terrible toll on the public’s trust in our local leaders. ILG gratefully acknowledges the What can we do to prevent this kind of scandal from firm of ever happening in our community? Are there steps we can take to repair the damage that has been done?

ANSWER for sponsoring three “Everyday As events unfolded this past summer about multiple Ethics” columns in 2010. irregularities in the City of Bell, many local officials were understandably shocked and dismayed. Many Burke, Williams & Sorensen represents cities, counties, also experienced the public’s understandable but redevelopment agencies, joint disheartening question, “If these things happened in powers authorities and special Bell, are they also happening in our community?” districts throughout California.

Many conscientious and concerned local officials Western City and ILG appreciate asked a similar question: “What can we do to make Burke, Williams & Sorensen’s sure that what happened in Bell never happens to our shared commitment to promoting community?” ethics in public service.

1400 K Street, Suite 205 • Sacramento, CA 95814 • 916.658.8208 F 916.444.7535 • www.ca-ilg.org

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

No Silver Bullet

First, there is no one step local officials can take that will inoculate a community against what happened in Bell. Publishing compensation rates on websites is an important first step, but it doesn’t get to the heart of the public’s concerns and conclusions about Bell. These concerns are that public officials — elected and appointed — are putting their interests ahead of the public’s interests in managing the agency. Moreover, in Bell a profound lack of transparency, if not downright deception, was an issue.

Thus, the excessive compensation packages were a symptom, not the cause, of the underlying problem. The question is: What were the circumstances that allowed the excessive compensation packages to be approved?

In Bell, an organizational culture existed that tolerated, or even supported, the pursuit of self-interests over the public’s interests. This, along with weaknesses in the system of traditional checks and balances against abuses of power, led to a scandal of such magnitude that it affected every local agency in California.

What can local officials and their communities do to prevent such a culture from taking hold? What can they do to make sure that such abuses of authority do not occur in their communities? Proactive strategies include:

• Understanding and applying public service ethics laws and principles; • Encouraging the public’s active engagement in public agency decision-making; and • Supporting an ongoing exchange of information within communities that keeps both officials and the public abreast of what they need to know to make informed judgments.

These strategies get to the heart of what makes democracy work at the local level. Together they constitute a community’s civic infrastructure, which is no less vital to the health and well-being of a community than conventional physical infrastructure.

Such approaches offer leaders the tools to focus exclusively on pursuing the public’s interests and also provide critical checks on the efforts of officials who might put self- interests ahead of the public’s interests.

Understanding Public Service Ethics Laws and Principles

In public service, the pursuit of self-interest at the expense of the public’s interest is fundamentally an ethics issue. Ethics is what one ought to do. Regardless of whether any laws were broken, the city manager in Bell ought not to have exploited his position of influence to secure such disproportionate salary and benefit packages for himself and others in the city.

Institute for Local Government www.ca-ilg.org 2

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

An Emphasis on Values and Process

With respect to public service ethics, the goal is to foster a culture of ethics within a local agency. When such a culture is robust, decision-making criteria include such values as trustworthiness, responsibility, fairness and respect. The means by which worthy ends are pursued matter as much as and sometimes even more than the ends themselves.

For public servants, worthy ends never justify questionable means. In a democracy, the means — which typically revolve around processes designed to promote public input and information — are truly the ends, as both Martin Luther King Jr. and Gandhi observed.

Laws as Minimum Standards

Promoting understanding of and compliance with the laws governing public service ethics is necessary but not sufficient. As this article goes to press, the degree to which laws were broken in Bell remains unclear. The public is anxious to see those who were responsible for the scandal held accountable and divested of what the public understandably considers to be ill-gotten gains. Law enforcement officials are rigorously reviewing Bell’s records to determine what the options may be.

The fact that it’s difficult to write enough laws to protect the public from all such abuses is exactly why it’s so important for conscientious local officials not to treat compliance with the law as the end of the analysis. When an agency has a robust culture of ethics, members of the local agency team embrace the notion that the law creates minimum standards — not the standard.

The prevailing analysis should be along the lines of “Now that we know what the law requires in a given situation, are there steps we can take to go above and beyond the law’s minimum requirements?” and “What approach will best promote the public’s trust and confidence in our agency?” It needs to take into account a prevailing public distrust (deepened as a result of the Bell scandal) of public officials’ actions and should err on the side of extreme caution.

Ethics and Values Statements: Walking the Talk Is Critical

Many organizations adopt values statements and/or values-based codes of ethics to underscore their commitment to how the agency pursues its objectives. These can be helpful, but the hard work begins after the adoption of such statements or codes. For such measures to make a difference, the question of how one walks the talk needs to be an ongoing part of the dialogue within the agency by elected officials and staff alike. Unless an agency is prepared to commit to such an effort, adopting such a statement can simply make an organization look hypocritical at best or deceptive at worst.

Institute for Local Government www.ca-ilg.org 3

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

Starting off on the Right Foot

Walking the talk can start before an individual becomes a member of the local agency team. Information about public service ethics can be part of candidate orientation materials, as can campaign ethics. Communities can also encourage their residents to “vote ethics.”

Ethics can play a role in the selection of employees. Does a candidate for a position adhere to his or her profession’s code of ethics? The candidates can be queried on how they have handled or would handle situations where their interests might conflict with those of the public.

Once on board, the organization’s commitment to ethics needs to be part of each employee’s orientation and also a part of evaluation and advancement.

Engaging the Public in Community Decision-Making

What steps can a public official take to create external support for public service ethics and decision-making grounded in the public’s interests? An active and engaged community helps, which is why former Supreme Court Justice Louis Brandeis observed that “the most important political office is that of private citizen.”

Fostering Community Traditions of Public Engagement

An active and engaged public can serve as an important check on abuses of public positions. How do today’s public servants foster traditions of public engagement to protect their communities from abuses now and in the future? Such efforts involve five elements:

1. Informing the public so residents have a capacity for and interest in participating; 2. Providing ongoing opportunities for residents to become involved in the community’s civic and political life; 3. Learning from the experience; 4. Refining approaches; and 5. Making these practices inherent in the way that local agencies govern.

These five elements contribute to habits and a culture of participation that make it less likely for a Bell scenario to develop.

Reaching Out Beyond the Usual Participants

Successfully developing public capacity for engagement in local government means seeking out those who don’t already attend public meetings. It also means restructuring such meetings to make them responsive to both organizers’ and attendees’ needs. Again, these efforts require both work and resources; there are no silver bullets.

Institute for Local Government www.ca-ilg.org 4

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

An assertive education and recruitment effort to involve the public can include citizen academies and other leadership development and engagement opportunities. People who have been involved in local government sometimes forget how unfamiliar local agency structures and processes can seem to the uninitiated.

Other strategies for success involve forging partnerships with organizations whose members are part of the communities that agencies are trying to reach; for example, community-based organizations, local congregations and business groups. Consider, too, the ways that an agency communicates information about what is going on. Do these communication efforts involve local ethnic media, social media and more informal communication channels?

Authentic Engagement, Not Just Going Through the Motions

All of these activities need to be undertaken with an overarching commitment to authenticity. This means public agencies should:

• Ask for information from the public when agency officials really want it; and • Take the public’s ideas and recommendations into account once they are offered.

Authentic public engagement builds community ownership. Not only does such engagement make it more likely that members of the public will participate again, it also increases the likelihood that members of the public will hold local officials accountable for pursuing the public’s interests as opposed to narrow self-interests.

Supporting a Strong Community Information Infrastructure

Another step leaders can take to protect their communities against unscrupulous officials is to support responsible and conscientious participants in the community’s information infrastructure. Watchdogs help not only detect and shine a light on abuses, but they also play a deterrent role in discouraging such abuses in the first place.

Local Leaders Need Solid Information

The place to start is within the local agency. Do elected and appointed officials have access to resources and networks of other local officials that help and support them in asking the right questions? Do staff members have the training, expertise and access to peers that help them give the right answers, make hard choices and speak truth to those in power?

In these difficult economic times, resources are often stretched thin. However, there are low-cost ways to make sure people have access to peer-to-peer support groups and learning networks, webinars and information resources. For example, the Institute for Local Government offers a variety of resources on its website (www.ca-ilg.org) to help

Institute for Local Government www.ca-ilg.org 5

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

local officials in their service to their communities, including a recently updated and expanded list of questions local officials can ask in their role as financial stewards for their public agencies (http://www.ca-ilg.org/post/financialmanagement)

Reliable Community Information Channels Also Critical

Communities as well as leaders benefit from a strong information infrastructure. Staying informed about what is happening locally helps people identify and connect with their community. Such a connection is vital for local agencies to function effectively. In addition, robust information flows are an important prerequisite if communities are to address pressing issues in a coordinated way.

Information flows also foster accountability. Because they play a watchdog role, journalists provide an important check against abuses. In Bell, the traditional media (the Los Angeles Times) broke the story about the salaries of staff and elected officials.

However, evidence suggests that business models for journalism are changing. Journalists and those who recognize the important role journalism plays in a democracy are experimenting with new business models, including foundation funding and more entrepreneurial models that take advantage of the Internet’s efficiency.

Of course, others who do not adhere to journalists’ standards for accuracy also take advantage of this same efficiency. When the forces of misinformation dominate the community information environment, it indicates that more needs to be done to support the flow of accurate information. Surrendering information forums to providers of misinformation is an unwise strategy.

Similarly, it’s not a good idea to resist requests for information to which the public is entitled. As one city manager observes, the reality of public administration is that the public is entitled to virtually all information related to how the agency conducts the public’s business. If there are concerns that information may be misinterpreted or taken

ABOUT ILG

This resource is a service of the Institute for Local Government (ILG) whose mission is to promote good government at the local level with practical, impartial, and easy-to-use resources for California communities. ILG is the nonprofit 501(c)(3) research and education affiliate of the League of California Cities and the California State Association of Counties. For more information and to access the Institute’s resources on Local Government 101 go to www.ca-ilg.org/local-government-101. To access this resource directly, go to www.ca-ilg.org/media-relations.

The Institute welcomes feedback on this resource:

• Email: [email protected] Subject: Media Relations for Newly Elected Officials • Mail: 1400 K Street, Suite 205 ▪ Sacramento, CA ▪ 95814

Institute for Local Government www.ca-ilg.org 6

Transparency in Local Government: Protecting Your Community Against Corruption December 2010

out of context, then the task becomes how to provide the most complete information possible to minimize that likelihood.

Local Officials’ Role in Supporting Community Information Flows

Local agencies play an important role as information providers. Information flows help local agency officials connect with the community, work with residents to identify solutions to challenges and then build support for those solutions. Such flows also help the community understand the constraints under which local agencies operate. When local agencies are genuinely working hard to address community needs with limited resources, as the vast majority are, such information flows are essential to their success in those endeavors.

While local agencies and officials are important sources of information, a robust community information system that functions apart from local agency efforts is vital in several ways. In addition to being a check against abuses, it helps leverage local agency communication efforts to reach diverse segments of the community. It helps the public evaluate the information local agencies make available and supplements public agency information with background and data from other sources.

In addition, participants in the flow of community information can generate feedback that can assist local officials in potentially identifying additional tactics for addressing community challenges and assessing community support for different strategies. This can in turn lead to public agency decisions that have more broadly based community support and, as a result, are more enduring.

Conclusion

The City of Bell scandal did deep and lasting damage to the public’s trust in local government. Local agencies’ repair efforts need to be concerted, visible, authentic and sustained. Again, there are no quick or easy fixes.

The Institute for Local Government has developed a number of on line resources to assist local agency officials in redoubling their efforts as they relate to ethics, engagement and information flows at www.ca-ilg.org.

The task can seem daunting given all of the many challenges local agencies face — however, the public’s trust and confidence is critical to addressing those other challenges. Chinese philosopher Lao Tzu observed that the journey of a thousand miles begins with a single step. When it comes to rebuilding and maintaining the public’s trust in local government, the task is to keep putting one foot after the other along the path of that critical journey.

G:\INSTITUTE\Ethics\Ethics Column\Formatted Articles\2010\Protecting Your Community Against Corruption.docx

Institute for Local Government www.ca-ilg.org 7

PUBLIC SERVICE ETHICS

Money and Public Service: A Possible Blind Spot? http://www.ca-ilg.org/post/money-a-possible-blind-spot December 2012

Question: Recent media accounts seem to paint an inaccurate picture of the vast majority of public servants. Whether it’s taking bribes, accepting generous gifts, pension scandals, or being paid for sitting on bodies that don’t do meaningful work, the picture portrays public officials on the take.

In my experience, these are the exceptions rather than the rule. Some people (our local district attorney, for one) ascribe the cause as people who get into public service for corrupt reasons—end of story. But I actually am familiar with some of the individuals involved in the prosecutions and I am not sure that’s always the explanation.

What’s your take on what happens to good people who make bad (and self-interested) decisions? And how is it that they can defend their actions in the face of almost overwhelming evidence that what they did was a serious breach of their responsibilities as public officials?

Answer: There is an interesting book that offers some insights into your question: Blind Spots: Why We Fail to Do What’s Right and What to Do about It. The authors present persuasive evidence, based on behavioral research, of humans’ tendency to overestimate their commitment to ethical decision-making.

In part, this is because people overlook the ethical dimensions of decisions when the time comes to make a decision involving ethical issues.1 Their recollections of their actions are then selective.2

Some Public Sector Examples

One possible example may be the recent criminal conviction of local officials in southern California for accepting stipends for sitting on various commissions that appeared to do little work.3 The elected officials were charged with misappropriating public funds4 when they collected stipends for meetings that didn’t occur or only lasted a few minutes.

Author Credit: This resource is a service of the Institute for Local Government (ILG), whose mission is to promote good government at the local level. For more information and to access ILG’s resources on public service ethics, visit www.ca-ilg.org/trust. ILG thanks former city manager Arne Croce for his insights on these topics.

1400 K Street, Suite 205 • Sacramento, CA 95814 • 916.658.8208 F 916.444.7535 • www.ca-ilg.org

Money and Public Service: A Possible Blind December 2012 Spot?

The officials’ defense attorneys have indicated that an appeal will occur.

People have also asked how the elected officials and staff in Bell could have thought it appropriate to pay themselves such generous salaries?5 Or, as in one case, feel it appropriate to sue for more money once the gig was up?6

Misuse of credit cards by elected officials7 and staff8 remains an ongoing topic in the news.

Sometimes, the lapses are even more serious. This includes when officials take money in exchange for official actions, which of course can lead to charges of bribery and/or extortion.

Apart from the whether the specific facts and laws mean that the above behavior constitutes a criminal offense, how could these officials and others think that they were doing the right thing when they walked so close to the line relating to criminal conduct?

The Importance of Thinking About What One Should Do Instead of What One Wants to Do

Applying the conclusions in Blind Spots, one answer may be that they never asked themselves or others whether enhancing their compensation in this way presented an ethical issue. Their thoughts were dominated by what they want to do.9 A focus on what one wants to do (in this case, have more money) can eclipse an analysis of what one should do.

“But I am Underpaid for All I Do for the Community”

One of the reasons that people don’t ask what they should do (or, if they do ask, they answer in a self-serving fashion) is the human tendency to rationalize behaviors.

In the prosecution for accepting the stipend, one of the reported defenses was that the officials had put in many years of service to the community.10 Along similar lines, another elected official facing bribery charges was reported as making the perplexing observation that, if she had gotten paid for all the volunteer work she had done over the years, she would be rich and wouldn’t be in court.11

One sometimes hears public employees note that they could make more in the private sector.

To be sure, community and public service is indeed demanding. It can involve a fulltime commitment of time and many sacrifices. And often, one could indeed make more money in the private sector or if one were compensated for all the volunteer work one has done.

Institute for Local Government www.ca-ilg.org 2

Money and Public Service: A Possible Blind December 2012 Spot?

People can make an analytical wrong turn by using these facts to justify additional forms of compensation. This can take several forms, including stipends for seemingly nominal activities, use of public resources for personal benefit, capitalizing on their positions to promote business or financial interests, and accepting meals, entertainment or other forms of gifts.

One of the most troubling dynamics identified in Blind Spots is evidence suggesting that individuals feel a greater license to engage in questionable behavior after having engaged in worthy behaviors.12 Given that public service is indeed a worthy behavior, it could be that public servants need to be particularly careful to avoid the trap of thinking that their worthy public service counterbalances any questionable benefits the official claims as a result of their public office.

“But It’s Not Illegal”

Another form of rationalization of an ethical lapse is that “it wasn’t against the law.” This seems to be a common response when the media asks officials to justify potentially questionable actions.

In fact, media reports of the preliminary hearing on charges against former Bell city manager quoted Robert Rizzo’s defense attorney as saying: “Everybody has agreed that it’s not a crime to be paid too much.”13 It’s not clear that everyone has indeed agreed to that position (particularly if transparency and other procedural requirements were not observed along the way) , but defense counsel’s statement provides an insight into Rizzo’s thought process, which was that he didn’t think he was committing any crimes.

It is worth noting that judges and jurors sometimes are motivated in egregious cases to apply the law in such a way to achieve what they perceive as a just result. This can result in old laws (for example, the law about what constitutes misappropriation of public resources14) being applied in new ways. Thus, when one only focuses on what one knows to be illegal and, as a result, acts in what strikes the public as immoral, the law may change.

This is why it is easy, but unwise, to use the law as a sole source of reference on what to do. In fact, the statement of “I broke no laws” is tantamount to admitting that one didn’t analyze whether in fact one did the right thing. The law creates a floor for behavior—a standard below which conduct is subject to penalties, jail time and other sanctions. The law doesn’t define what the best course of action is in any given situation.

However, legal considerations can be a dominant element of the analysis of what public officials do. Because of this, the authors of Blind Spots determined that compliance systems actually can result in more unethical decision-making. This is because having the law as a reference can absolve people from engaging in a more values-based analysis.15

Institute for Local Government www.ca-ilg.org 3

Money and Public Service: A Possible Blind December 2012 Spot?

“Nobody Told Me”

A focus on the law contributes to another human tendency, which is to assign responsibility for transgressions to others. For example, attorneys in the southern California case argued that their clients should not be criminally responsible for their actions because city attorneys and city managers never alerted them that the commission pay might be illegal.16 If the officials were thinking about what’s right as opposed to what’s legal, others’ alleged failures become irrelevant.

While most public agency professionals pride themselves on speaking truth to power,17 their failure to do so does not absolve those who choose not to engage in their own analysis. Moreover, as the case of the Bell whistleblower indicates,18 staff members who do decide to do the right thing often risk their jobs to do so. The prevailing environment can sometimes be one where truth-telling is neither sought nor welcome. (For more about the legal protections for whistleblowers, see the April 2005 article in Western City available at http://www.ca-ilg.org/document/whom-whistle-blows).

That puts public agency professionals in the position of weighing what they want to do (keep their jobs) and what they should do (put a stop to improper behaviors that undermine public trust and confidence in local officials). The authors of Blind Spots note that it is common for people to not notice others’ unethical behavior when they have a vested interest in not seeing that behavior.19 They call this phenomenon “motivated blindness.”

In other situations, it appears that some agency professionals find themselves using their knowledge and skills to both secure their positions and curry personal favor with those who are in a position to reward and/or support them. The information reported in the press about Robert Rizzo’s actions in Bell seem to suggest this phenomenon.

Either represents the dynamic of putting one’s wants ahead of what should (or should not be) happening.

The Denial Dynamic

When confronted with wrongdoing, oftentimes the denial is quite emphatic. For example, one defendant facing—and subsequently convicted of--bribery charges said this in response to questions on whether she would go to trial:

Oh, yes, I've got to prove my innocence, I wouldn't put my life savings...if I didn't believe in my innocence. It's [the charges are] all a crock.20

Her appeal of her conviction is pending and it’s of course possible that she was framed or the jury was wrong. But what if the jury was right?21

Institute for Local Government www.ca-ilg.org 4

Money and Public Service: A Possible Blind December 2012 Spot?

According to Blind Spots, it’s not uncommon for people to have selective memories: remembering behaviors that support a self-image of being ethical while forgetting those that are inconsistent with that image.22 Other dynamics include re-defining definitions of what is ethical and what isn’t, deflecting blame and rationalizing that “everyone does it.”23

What to Do

The authors of Blind Spots note that ethics codes and other forms of regulations are imperfect tools for achieving better behavior. In part, this is because such devices reflect only the “tip of the organization’s ‘ethical infrastructure.’”

Moreover, research suggests that sanctioning bad behavior can make the situation worse because the compliance system took the ethical element out of the analysis for most people.24 In addition, psychologists have found that people’s tendency to rebel against constraints Tools for Deciding What’s on their freedoms cause people to try to outsmart Right 25 the constraints. The Institute for Local Instead, the authors of Blind Spots argue that the Government’s publication task is to promote a decision-making framework Understanding the Basics of Public that highlights the ethical dimensions of a decision Service Ethics: Promoting Personal 26 or action. For individuals, this involves more of a and Organizational Ethics offers deliberate focus on and analysis what should thoughts on how to apply values- 27 happen in a given situation. They also based decision-making principles to recommend thinking in advance about how one’s issues that arise in the context of “wants” may interfere with one’s motivation to public service and also explores the make the right decision and preparing oneself to nature of an ethical dilemma. exercise more discipline to make decisions that 28 align more with one’s values. The publication is available online at www.ca-ilg.org/ppoe. In addition, For agencies, the first task is to understand the past “Everyday Ethics” columns processes that motivate individual employee’s that analyze the ethical and legal decisions. What pressures do employees feel and components of specific dilemmas why? What challenges do they face? What types public officials face are available at of decisions does the organization reward? What www.ca-ilg.org/everydayethics. qualities enable an individual to advance within the organization?29 Another indicator is what is talked about and what isn’t.30 This is a question to ponder for associations of local agencies and local agency officials. What signals do respected leaders within the field send about what’s important? Where are these leaders and their associations silent? Do these organizations create opportunities for their members to understand blind spots and how to avoid them? Or, are there ways that these organizations may reinforce blind spots?

Institute for Local Government www.ca-ilg.org 5

Money and Public Service: A Possible Blind December 2012 Spot?

These are all questions those that care about the public’s trust and confidence in local agency institutions are wise to ask.

G:\INSTITUTE\Ethics\Ethics Column\2012\6-Dec\Money and Public Service - A Possible Blind Spot.docx

ABOUT ILG ILG is the nonprofit 501(c)(3) research and education affiliate of the League of California Cities and the California State Association of Counties. For more information and to access the Institute’s resources on ethics visit www.ca-ilg.org/trust. If you would like to access this resource directly, go to www.ca-ilg.org/overview/everyday-ethics. The Institute welcomes feedback on this resource: • Email: [email protected] Subject: Money and Public Service: A Possible Blind Spot?

• Mail: 1400 K Street, Suite 205 ▪ Sacramento, CA ▪ 95814

References and Resources

Note: Sections in the California Code are accessible at http://leginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52. A source for case law information is www.findlaw.com/cacases/ (requires registration).

1 Max H. Bazerman and Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (Princeton University Press: 2011), chapter 4 (a process they call “ethical fading”). 2 Blind Spots, at 73-76. 3 Los Angeles Times, 2 former Lynwood council members found guilty of corruption, July 31, 2012, available at http://articles.latimes.com/2012/aug/01/local/la-me-lynwood-corruption-20120801. 4 See Cal. Penal Code §424(a). 5 CBS Los Angeles, Lawyer: Robert Rizzo Was Victimized, Not City Of Bell, February 23, 2011 available at http://losangeles.cbslocal.com/2011/02/23/lawyer-robert-rizzo-was-victimized-not-city-of-bell/ 6 Los Angeles Times, Ousted Bell police chief sues for severance pay, August 02, 2012, available at http://articles.latimes.com/2012/aug/02/local/la-me-bell-adams-20120803. See also Los Angeles Times, In e-mails, Bell official discussed fat salaries, February 14, 2011, available at http://articles.latimes.com/2011/feb/14/local/la-me-bell-emails-20110215:

As Bell prepared to hire a police chief in 2009, the top candidate for the post exchanged e-mails with the city's No. 2 official: "I am looking forward to seeing you and taking all of Bell's money?!" Randy Adams wrote shortly before starting the job. "Okay … just a share of it!!"

"LOL … well you can take your share of the pie … just like us!!!" responded Angela Spaccia, the city's assistant administrator. "We will all get fat together … Bob has an expression he likes to use on occasion," she continued, referring to her boss and chief administrative officer, Robert Rizzo. "Pigs get Fat … Hogs get slaughtered!!!! So as long as we're not Hogs … All is well!" Excerpts from the e-mails were made public Monday by Los Angeles County prosecutors in court documents that accuse Rizzo and Spaccia of intentionally concealing the steps they took to pay themselves and other city officials exorbitant salaries.

Institute for Local Government www.ca-ilg.org 6

Money and Public Service: A Possible Blind December 2012 Spot?

7 Los Angeles Times, Court overturns former Compton Mayor Omar Bradley's conviction, August 03, 2012, available at http://articles.latimes.com/2012/aug/03/local/la-me-0802-omar-bradley-20120803. 8 CBS Sacramento, “One of Mayor[‘s] . . . Top Aides Quits Amid Reports of Credit Card Abuse, available at http://sacramento.cbslocal.com/2012/07/24/one-mayor-johnsons-top-aides-quits-amid-reports-of/; Los Angeles Times, Former Costa Mesa police chief admits he abused city credit card June 18, 2012, available at http://articles.latimes.com/2012/jun/18/local/la-me-costamesa-police-20120618. 9 Blind Spots, at 67. 10 Los Angeles Times, 2 former Lynwood council members found guilty of corruption, July 31, 2012, available at http://articles.latimes.com/2012/aug/01/local/la-me-lynwood-corruption-20120801. 11 Pasadena Star News, Former Temple City mayor . . . maintains her innocence before court appearance, 03/24/201, available at http://www.pasadenastarnews.com/ci_17692490 (also maintaining that the charges were a “crock”). (She was subsequently convicted by a jury for accepting a bribe and committing related offenses Los Angeles Times, . . . former Temple City mayor, sentenced to prison for bribery, perjury, June 23, 2011, available at http://latimesblogs.latimes.com/lanow/2011/06/former-temple-city-mayor-sentenced- for-bribery-perjury-.html. She has begun serving her four year sentence in prison while her attorneys pursue an appeal. Pasadena Star News, Errors alleged in ex-Temple City mayor . . . bribery trial July 30, 2012, available at http://www.pasadenastarnews.com/templecity/ci_21194051/errors-alleged-ex-temple- city-mayor-cath-wilsons . 12 Blind Spots, at 114-17. 13 CBS Los Angeles, Lawyer: Robert Rizzo Was Victimized . . ., February 23, 2011 available at http://losangeles.cbslocal.com/2011/02/23/lawyer-robert-rizzo-was-victimized-not-city-of-bell/ . 14 Cal. Penal Code § 424(a), which provides:

Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either:

1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another; or,

2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law; or,

3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same; or,

4. Fraudulently alters, falsifies, conceals, destroys, or obliterates any account; or,

5. Willfully refuses or omits to pay over, on demand, any public moneys in his or her hands, upon the presentation of a draft, order, or warrant drawn upon these moneys by competent authority; or,

6. Willfully omits to transfer the same, when transfer is required by law; or,

7. Willfully omits or refuses to pay over to any officer or person authorized by law to receive the same, any money received by him or her under any duty imposed by law so to pay over the same;--

Is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state.

15 Blind Spots, at 109-113.

Institute for Local Government www.ca-ilg.org 7

Money and Public Service: A Possible Blind December 2012 Spot?

16 Los Angeles Times, 2 former Lynwood council members found guilty of corruption, July 31, 2012, available at http://articles.latimes.com/2012/aug/01/local/la-me-lynwood-corruption-20120801. 17 See, for example, Aaron Wildavsky, Speaking Truth to Power: The Art and Craft of Policy Analysis (Little Brown: 1987); League of California Cities, City Attorneys Department, Ethical Principles for City Attorneys, Principle 1, Example 6 (“The city attorney should be willing to give unpopular legal advice that meets the law’s purpose and intent even when the advice is not sought but the legal problem is evident to the attorney.”) available at http://www.cacities.org/UploadedFiles/LeagueInternet/d6/d60445e6-7918-459b- 9780-00a714616297.pdf. 18 Los Angeles Times, Sergeant who reported Bell corruption wins whistle-blower settlement, August 04, 2012, available at http://articles.latimes.com/2012/aug/04/local/la-me-0804-bell-whistleblower-20120804. 19 Blind Spots, at 81. 20 Pasadena Star News, Former Temple City mayor . . . maintains her innocence before court appearance, 03/24/201, available at http://www.pasadenastarnews.com/ci_17692490 (also maintaining that the charges were a “crock”). (She was subsequently convicted by a jury for accepting a bribe and committing related offenses Los Angeles Times, . . . former Temple City mayor, sentenced to prison for bribery, perjury, June 23, 2011, available at http://latimesblogs.latimes.com/lanow/2011/06/former-temple-city-mayor-sentenced- for-bribery-perjury-.html. She has begun serving her four year sentence in prison while her attorneys pursue an appeal. Pasadena Star News, Errors alleged in ex-Temple City mayor . . . bribery trial July 30, 2012, available at http://www.pasadenastarnews.com/templecity/ci_21194051/errors-alleged-ex-temple- city-mayor-cath-wilsons 21 In another case in which local officials were convicted and sentenced to prison for misappropriation of public resources, one of the defendants reportedly responded that he had done “nothing wrong” when the sentencing judge asked the defendant if the defendant was sorry. See Ex-Lynwood councilmen get prison in misuse of city funds, Los Angeles Times, September 22, 1012, available at http://www.latimes.com/news/local/la-me-0922-lynwood--20120922,0,4888573.story. 22 Blind Spots, at 73-76. 23 Blind Spots, at 72-73. 24 Blind Spots, at 109-11. 25 Blind Spots, at 112-113. 26 Blind Spots, at 113. 27 Blind Spots, at 153-54. 28 Blind Spots, at 154-55. 29 Blind Spots, at 160-61. 30 Blind Spots, at 161-63.

Institute for Local Government www.ca-ilg.org 8

PUBLIC SERVICE ETHICS

Public Agency Attorney Ethics http://www.ca-ilg.org/post/public-agency-attorney-ethics February 2013

Question: Ethics is very important to our organization. For example, when we hire the chief executive, one of the criteria is being a member of the International City/County Management Association (ICMA), since we know that that organization requires its members to adhere to a code of ethics.

Is there something similar for public agency attorneys? If so, what kinds of standards does it set?

Answer: Attorneys must meet a number of requirements (including ethics requirements) to be able to practice law and to continue practicing law in California. Some of those requirements are creatures of state law; others are rules adopted by the State Bar. In addition, the City Attorneys Department of the League of California Cities has adopted aspirational standards for those involved in the practice of municipal law.

The Business and Professions Code and the State Bar Act

Some background information about attorney licensure requirements may be helpful. In California, attorneys must be licensed to practice law.1 The licensing organization is The State Bar of California.2 California attorneys must take and pass two tests (commonly referred to as the Bar Exam) to be able to practice law.3 One of these tests is focused on the rules relating to professional ethics.4 In addition to taking a test, prospective attorneys must be found to be of “good moral character.”5

To maintain their status, they must take continuing legal education courses, including courses relating to legal ethics.6 In addition, on an ongoing basis, attorneys, including those who represent governmental agencies, must adhere to the Rules of Professional

This column is a service of the Institute for Local Government (ILG), whose mission is to promote good government at the local level. For more information and to access ILG’s resources on public service ethics, visit www.ca-ilg.org/trust.

ILG thanks former City Managers Arne Croce and Jan Perkins, Judy Nadler, Senior Fellow, Markkula Ethics Center for Applied Ethics, as well City Attorneys Steve Dorsey (Richards, Watson and Gershon representing San Marino, Buena Park and Norwalk), Greg Priamos (Riverside) and Brian Libow (San Pablo) for their review and comments on this article.

1400 K Street, Suite 205 • Sacramento, CA 95814 • 916.658.8208 F 916.444.7535 • www.ca-ilg.org

Public Agency Attorney Ethics February 2013

Conduct set by the California Bar and approved by the California Supreme Court.7 These requirements are in addition to ethics law requirements imposed on public officials

Like all rules relating to ethics, these are minimum standards. However, failure to meet these and other standards can subject an attorney to discipline and even loss of license (a process called “disbarment”8).

Attorneys’ Professional Responsibilities to Advise Compliance with the Law

California’s Business and Professions Code details these various requirements for attorney licensure, education and discipline. It also imposes on attorneys certain duties,9 which are further fleshed out in the State Bar’s Rules for Professional Conduct.10 (Note that a proposal to significantly reorganize these rules is currently pending before the California Supreme Court.11)

Taken together, these rules impose a professional obligation for attorneys to counsel compliance with the law,12 unless the attorney believes in good faith that a law is invalid.13

Similarly, attorneys are not allowed to seek, accept, or continue employment if the member knows or should know that the goal is to present a litigation claim or defense that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.14 Attorneys may only pursue clients’ causes in ways that are consistent with the truth.15

Attorneys’ Department Principles Offer Guidance

The aspirational ethical principles adopted by the League of California Cities’ city attorneys department16 (“principles”) take these concepts further and encourage municipal lawyers to promote the rule of law by approaching their roles in a way that helps create a culture of compliance with the law.17 This includes promoting and exemplifying the underlying purpose of legal requirements.18

The principles encourage municipal lawyers to rely on sound legal analysis in providing advice. 19 Common practice (“everyone else does it that way”) or a past practice (“we have always done it that way”) should not move an attorney away from that analysis, nor should it matter that the risk of suit or other consequence for action is considered low.20

In addition, the principles recognize that attorneys may be pressured to justify a course of action that is clearly unlawful. When this occurs, the principles encourage the attorney to resist pressure to be “creative” to provide cover for the elected or appointed public officials who want to act in ways that are unlikely to be legal.21

Institute for Local Government www.ca-ilg.org 2

Public Agency Attorney Ethics February 2013

The principles also recognize that those who are intent on proceeding unlawfully will sometimes keep the attorney out of the loop. If, in spite of such efforts, a problem becomes evident to the attorney, the principles encourage the agency’s attorney to give unpopular legal advice that meets the law’s purpose and intent even when the advice is not sought.22

In short, these concepts are why people sometimes refer to attorneys as “counsel” or “counselor.” However, beyond encouraging (counseling) compliance with the law, public agency attorneys generally have no inherent policing or enforcement powers when it comes to client decisions to act unlawfully.

Who Gets to Decide? Other Things for Agency Officials to Know Ultimately, the attorney’s client decides on As indicated in the article, the holder of the whether to follow the attorney’s advice. This is attorney-client privilege is the agency. The one of the contexts in which it is important for Rules of Professional Conduct allow the public agencies to understand who the “client” is. client to waive that privilege, as long as such The client is the organization itself, acting through consent is “informed.”23 Thus, a majority of its highest authorized body, officer or employee the governing body can waive the privilege that is authorized to act on a matter.25 and allow an attorney to alert enforcement authorities to unlawful conduct. So what happens if the attorney gives advice and Such waiver can be on a case-by-case basis. it is not followed? Strictly speaking, the current Alternatively, an issue the Institute is Rules of Professional Conduct do not require that pondering is whether the waiver can occur the attorney take the issue up the chain of for violations of ethics laws, for example as 26 command; they merely allow it. Doing so, part of an agency’s adoption of its ethics however, is consistent with attorneys’ obligation policies.24 to keep clients reasonably informed of significant developments related to representation.27 (The Also, majorities on a governing body can pending proposed rules do require going up the change. If an inquiry is made into why the agency or individual officials pursued an chain of command, unless the attorney believes it unlawful course of action, subsequent is not necessary to protect the organization’s 28 majorities may elect to waive the privilege interests. ) and disclose what advice the attorney did and did not give. What Happens If the Organization Persists?

Attorneys in such situations face unique constraints compared to others who work for public agencies. State law requires attorneys to maintain their clients’ confidences.29 The only exception (not typically relevant to the public agency context) is when death or substantial bodily harm can be avoided by disclosure.30

Thus, if an attorney has given advice that is not being followed, the attorney has few options. The easiest situation is when the law is not clear and the clients’ course of action is not demonstrably unlawful.

Institute for Local Government www.ca-ilg.org 3

Public Agency Attorney Ethics February 2013

However, if indeed it is clear that the agency is taking an unlawful action and the attorney’s efforts to encourage corrective action have been unavailing,31 the only recourse the attorney has is to resign.32

What about state-law protections for whistle-blowers? The Attorney General has concluded that Business and Professions Code sections relating to attorney-client confidentiality trump those protections.33 The comment section to the California Bar’s Proposed Rules of Professional Conduct also takes this position.34 Efforts to create an exception have been vetoed by two different Governors.35 Back to the Question: Attorney Ethics

One of the strategies the Institute recommends for organizations concerned about Agency Counsel Supervises maintaining a culture of ethics is to include Attorneys Providing Advice to questions relating to ethics in the interview Agency process (see August 2006 article on this topic available at http://www.ca- For cities and counties, state law ilg.org/post/promoting-culture-ethics-your- provides some guidance on the roles agency). In addition to asking candidates for public agency counsel is to play within an agency.36 In charter cities, this agency executive positions about their guidance is typically provided in the membership in ICMA, asking a candidate for charter. the agency attorney about their views of the agency’s attorneys department’s ethical From time to time, the agency may find principles is a first step. it necessary or useful to hire additional legal assistance. Typically, such counsel However, (remembering that Bell’s disgraced will work under the supervision and city manager, Robert Rizzo, was a member of direction of the city attorney or county ICMA), mere membership in an organization or counsel. familiarity with a code, is helpful but not sufficient. The next step in the “hiring-for-ethics” process is to probe how an individual would handle certain situations, including a situation in which advice has been given but not followed (or not sought). Would the candidate leave it there or try to prevent harm to the agency by communicating up the chain of authority? Not only does this allow those involved in the hiring process to determine how a prospective attorney says he or she will handle a given situation,37 it also signals to the candidate that decision-makers support ethical decision-making within the organization. In short, promoting a culture of ethics and fidelity to the law is everyone’s responsibility in the organization. In California, every elected official and high level employee takes an oath of office to support and defend the federal and state constitutions,38 from which all laws derive. While determining what the law requires in any given situation is the attorney’s responsibility, following that law is everyone’s responsibility in public service.

Institute for Local Government www.ca-ilg.org 4

Public Agency Attorney Ethics February 2013

In organizations with a strong ethical culture, leaders understand and support the attorney’s advice-giving role, even when that advice is unpopular or may be politically difficult. Conversely, in organizations lacking such a strong culture, the attorney receives signals that negative advice isn’t welcome and even if the attorney were to work up the chain of command to the highest decision-making authority, the decision would be to ignore the unwelcome advice.

If You Are the Attorney in This Situation

For any public servant, including attorneys, asking someone to put one’s job and financial security (and that of his or her family) on the line is huge. This is the essence of a “moral courage” ethical dilemma—when someone knows the right thing to do but understands that Annual Memo doing it will involve a personal cost. The Rules of Professional Conduct The decision is a difficult one. However, experience require attorneys to be clear on when has shown that, when agencies violate the law (and there is and is not a confidential in public agencies, odds are that transparency relationship.39 requirements and changes in leadership will ultimately bring bad behavior to light), people will One way to do this is with an annual memo that explains that the agency is scrutinize the role of the local agency attorney. the client and offers other important For attorneys, documenting that one has given good information (for example, about how to satisfy state-required ethics advice on what the law requires in a given situation training) and ethics law information. (or situations) can be a wise strategy. So is The Institute offers a sample of such documenting efforts to bring issues to the attention a memo on its website. of the highest decision-making level. A confidential memo is a tool to do this.40 Another situation that can occur is that decision-makers will pressure attorneys to modify their advice. Courts have recognized this phenomenon—in the context of public service ethics legal advice—and found that advice of counsel is not a defense.41

What if one fears that providing such advice in writing—so there is no question that it was given—will in itself put one’s job on the line? That’s an indication that those in a position to act on that advice want to retain the option, if caught, to claim ignorance. It’s a short next step (and one that has been taken many times) to blame the attorney for not giving the advice.42 To be sure, it’s a no-win situation. In this situation, however, it may well be longer-term career insurance to give the advice and put one’s job on the line if necessary.

Institute for Local Government www.ca-ilg.org 5

Public Agency Attorney Ethics February 2013

About ILG ILG is the nonprofit 501(c)(3) research and education affiliate of the League of California Cities and the California State Association of Counties. For more information and to access the Institute’s resources on ethics visit www.ca-ilg.org/trust. If you would like to access this resource directly, go to www.ca-ilg.org/overview/everyday-ethics. The Institute welcomes feedback on this resource: • Email: [email protected] Subject: Public Agency Attorney Ethics • Mail: 1400 K Street, Suite 205 ▪ Sacramento, CA ▪ 95814

References and Resources

Note: Sections in the California Code are accessible at http://leginfo.legislature.ca.gov/. Fair Political Practices Commission regulations are accessible at www.fppc.ca.gov/index.php?id=52. A source for case law information is www.findlaw.com/cacases/ (requires registration).

1 See Cal. Const. art. VI, § 9:

The State Bar of California is a public corporation. Every person admitted and licensed to practice law in this State is and shall be a member of the State Bar except while holding office as a judge of a court of record.

See also Cal. Bus. & Prof. Code § 6060 (relating to the licensure requirement). 2 See Cal. Bus. & Prof. Code § 6001 and following (creating the State Bar of California and specifying its powers and duties). The Bar’s website is www.calbar.ca.gov. 3 See Cal. Bus. & Prof. Code § 6046 (the test is administered by the State Bar’s Committee of Bar Examiners). For more information on the admission to practice law requirements, see http://rules.calbar.ca.gov/Rules/Title4AdmissionsandEducationalStandards.aspx . 4 See Cal. Bus. & Prof. Code § 6060(f)(authorizing Committee of Bar Examiners to require testing in Professional Responsibility); http://admissions.calbar.ca.gov/Examinations/MultistateProfessionalResponsibilityExamination.aspx (Bar’s requirement that applicants for admission take the national examination on professional responsibility requirements). 5 See Cal. Bus. & Prof. Code § 6060(b) (note that attorneys must also meet certain educational requirements) 6 See Cal. Bus. & Prof. Code § 6070; California Rules of Court, Rule 9.31 (available at http://www.courtinfo.ca.gov/cms/rules/index.cfm?title=nine&linkid=rule9_31) , and State Bar of California, MCLE Rules (http://mcle.calbar.ca.gov/MCLE/Rules.aspx). 7 See Cal. Bus. & Prof. Code § 6100. 8 See Cal. Bus. & Prof. Code § 6117. 9 See Cal. Bus. & Prof. Code § 6068. 10 These are available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct.aspx . Note that revisions to these rules have been approved by the State Bar and are pending approval before the California

Institute for Local Government www.ca-ilg.org 6

Public Agency Attorney Ethics February 2013

Supreme Court: http://ethics.calbar.ca.gov/Portals/9/documents/CRRPC/RRC%20Final%20Docs/Proposed%20Rules%20of %20Professional%20Conduct%20v.14%20%2806-26-12%29.pdf . 11 These can be found at http://ethics.calbar.ca.gov/Portals/9/documents/CRRPC/RRC%20Final%20Docs/Proposed%20Rules%20of %20Professional%20Conduct%20v.14%20%2806-26-12%29.pdf 12 See Cal. Bus. & Prof. Code § 6068(c) (“To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.”) 13 State Bar Rule of Professional Conduct Rule 3-210 Advising the Violation of Law, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3210.aspx 14 State Bar Rule of Professional Conduct Rule 3-200 Prohibited Objectives of Employment, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3200.aspx 15 See Cal. Bus. & Prof. Code § 6068(d) (“To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”). 16 Ethical Principles for City Attorneys, Adopted October 6, 2005, City Attorneys Department Business Session. Available at www.cacities.org/attorneys, specifically http://www.cacities.org/UploadedFiles/LeagueInternet/d6/d60445e6-7918-459b-9780-00a714616297.pdf. 17 City Attorneys Ethical Principles, Principle 1, Rule of Law. 18 City Attorneys Ethical Principles, Principle 1, Rule of Law. 19 City Attorneys Ethical Principles, Principle 1, Rule of Law, Example 3. 20 City Attorneys Ethical Principles, Principle 1, Rule of Law, Example 3. 21 City Attorneys Ethical Principles, Principle 1, Rule of Law, Example 2. 22 City Attorneys Ethical Principles, Principle 1, Rule of Law, Example 6. 23 See State Bar Rule of Professional Conduct Rule 3-100, Confidential Information of a Client, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3100.aspx

(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client . . .

(emphasis added). 24 This approach is contemplated by the California Bar’s Proposed Rules of Professional Responsibility, comment 15 to Rule 1.13:

[15] Although this Rule does not authorize a governmental organization’s lawyer to act as a whistle-blower in violation of Business and Professions Code section 6068(e) or Rule 1.6, a governmental organization has the option of establishing internal organizational rules and procedures that identify an official, agency, organization or other person to serve as the designated recipient of whistle-blower reports from the organization’s lawyers. 25 State Bar Rule of Professional Conduct Rule 3-600, Organization as Client:

(A) In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement. . . .

(C) If, despite the member's actions in accordance with paragraph (B), the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the member's response is limited to the member's right, and, where appropriate, duty to resign in accordance with rule 3-700.

(emphasis added). Note that the applicable section in the Proposed Rules of Professional Conduct is Rule 1.13. The proposed rules are available at

Institute for Local Government www.ca-ilg.org 7

Public Agency Attorney Ethics February 2013

http://ethics.calbar.ca.gov/Portals/9/documents/CRRPC/RRC%20Final%20Docs/Proposed%20Rules%20of %20Professional%20Conduct%20v.14%20%2806-26-12%29.pdf 26 State Bar Rule of Professional Conduct Rule 3-600, Organization as Client:

(B) If a member acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the member shall not violate his or her duty of protecting all confidential information as provided in Business and Professions Code section 6068, subdivision (e). Subject to Business and Professions Code section 6068, subdivision (e), the member may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others: (1) Urging reconsideration of the matter while explaining its likely consequences to the organization; or (2) Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization. 27State Bar Rule of Professional Conduct 3-500 Communication, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3500.aspx 28 Proposed Rule of Professional Conduct Rule 1.13:

Rule 1.13 Organization as Client

(a) A lawyer employed or retained by an organization shall conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized constituents overseeing the particular engagement.

(b) If a lawyer representing an organization knows that an officer, employee or other person associated with the organization is acting, intends to act or refuses to act in a matter related to the representation in a manner that the lawyer knows or reasonably should know is (i) a violation of a legal obligation to the organization, or a violation of law reasonably imputable to the organization, and (ii) likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best lawful interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best lawful interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.

(c) In taking any action pursuant to paragraph (b), the lawyer shall not violate his or her duty of protecting all information protected by Business and Professions Code section 6068(e).

(d) If, despite the lawyer’s actions in accordance with paragraph (b), the officer, employee or other person insists upon action, or fails to act, in a manner that is a violation of a legal obligation to the organization or a violation of law reasonably imputable to the organization, and is likely to result in substantial injury to the organization, the lawyer shall continue to proceed as is reasonably necessary in the best lawful interests of the organization. The lawyer’s response may include the lawyer’s right and, where appropriate, duty to resign or withdraw in accordance with Rule 1.16. 29 See Cal. Bus. & Prof. Code § 6068 (e) (1)(“To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”). 30 State Bar Rule of Professional Conduct 3-100 Confidential Information of Client, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3100.aspx

Institute for Local Government www.ca-ilg.org 8

Public Agency Attorney Ethics February 2013

(B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(C) Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances:

(1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and

(2) inform the client, at an appropriate time, of the member's ability or decision to reveal information as provided in paragraph (B). (D) In revealing confidential information as provided in paragraph (B), the member's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure.

(E) A member who does not reveal information permitted by paragraph (B) does not violate this rule. 31 City Attorneys Ethical Principles, Principle 1, Rule of Law, Example 5:

If the city has made a decision that the city attorney believes may be legally harmful to the city, the city attorney should encourage the city to take any necessary corrective action but do so in a way that minimizes any damage to the city’s interests. 32 State Bar Rule of Professional Conduct Rule 3-100 Termination of Employment, available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3700.aspx:

B) Mandatory Withdrawal.

A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:

(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; . . .

(C) Permissive Withdrawal.

If rule 3-700(B) is not applicable, a member may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:

(1) The client

(a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or

Institute for Local Government www.ca-ilg.org 9

Public Agency Attorney Ethics February 2013

(b) seeks to pursue an illegal course of conduct, or

(c) insists that the member pursue a course of conduct that is illegal or that is prohibited under these rules or the State Bar Act, or

(d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively, or

(e) insists, in a matter not pending before a tribunal, that the member engage in conduct that is contrary to the judgment and advice of the member but not prohibited under these rules or the State Bar Act, or

(f) breaches an agreement or obligation to the member as to expenses or fees.

(2) The continued employment is likely to result in a violation of these rules or of the State Bar Act; . . . 33 71 Ops. Cal. Atty. Gen. 255 (1988). 34 See also Proposed Rules of Professional Conduct, Rules 1.6 & 1.13: Confidentiality & Organization as Client, specifically comment 15 to Rule 1.13:

[15] Although this Rule does not authorize a governmental organization’s lawyer to act as a whistle-blower in violation of Business and Professions Code section 6068(e) or Rule 1.6, a governmental organization has the option of establishing internal organizational rules and procedures that identify an official, agency, organization or other person to serve as the designated recipient of whistle-blower reports from the organization’s lawyers. 35 See, for example, See AB 2713 (2003-2004 Reg Sess.), which would have authorized public agency attorneys to disclose confidential information when:

1. If they learn that their client is engaging in a crime or fraud and they have tried to remonstrate up the organization’s hierarchy; or

2. The very head of the organization is engaged in the crime or fraud; or

3. Reporting up the hierarchy would not be reasonable under the circumstances.

Governor Schwarzenegger vetoed AB 2713. See also AB 363 (2001-2002 Reg. Session), vetoed by Governor Davis. 36 See Cal. Gov’t Code §§ 36505 (in general law cities, city council appoints city attorneys); 41801-41803.5 (city attorney shall advise city officials in all legal matters pertaining to city business); §§ 27642, 26520 (authorizing appointment of county counsel to provide legal services to the county); § 26526 (county counsel is the legal adviser of the board of supervisors).. 37 As discussed in the December column, research indicates that saying one will do the right thing and actually doing the right thing are different matters. See Max H. Bazerman and Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (Princeton University Press: 2011), chapter 4 (a process they call “ethical fading”). 38 See Cal. Const. art. XX, §3, which says

Members of the Legislature, and all public officers and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation:

Institute for Local Government www.ca-ilg.org 10

Public Agency Attorney Ethics February 2013

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.

"And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: ______(If no affiliations, write in the words "No Exceptions") and that during such time as I hold the office of ______(name of office) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means."

And no other oath, declaration, or test, shall be required as qualification for any public office or employment.

"Public officer and employee" includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing.(emphasis added). 39 See State Bar Rule of Professional Conduct Rule 3-600(D), Organization as Client

(D) In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those of the constituent(s) with whom the member is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not be used in the organization's interest if that is or becomes adverse to the constituent.(emphasis added). 40 See Roberts v. City of Palmdale, 5 Cal. 4th 363, 20 Cal. Rptr. 2d 330, 853 P.2d 496 (1993) (finding attorney memo to governing body is protected by attorney-client privilege; memo is not subject to disclosure under the Public Records Act and does not violate open meetings law). 41 See People v. Chacon, 40 Cal. 4th 558 (2007). 42 This can conceivably give rise to a complaint that the attorney violated State Bar Rule of Professional Conduct Rule 3-110 Failing to Act Competently:

Attorneys must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. For purposes of this rule, "competence" in any legal service means applying the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. Available at http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3110.aspx

G:\INSTITUTE\Ethics\Ethics Column\2013\1-Feb (Atty Ethics)\Public Agency Attorney Ethics.docx

Institute for Local Government www.ca-ilg.org 11