Ethics Task Force Paul Gillies. Esq., Chair August 6, 1999 |
| Local officials are easy targets for those seeking to
criticize the way government does business. Many times people who serve in local office
are those with business ties to the community. In some towns, everyone who appears before
a board is known to every member of the body. This creates appearances of conflict of
interest at every meeting, and a good deal of confusion when local officials try to figure
out how to deal with such conflicts. Consider these examples: a member of the planning commission switches sides at the table to present a site plan for a commercial project he’s planning. A select board member appeals her grand list. The town clerk wants to hire his daughter to work for him during the summer. The person who always gets the contract for gravel is underbid by an out-of-town competitor nobody really knows. A zoning administrator needs a zoning permit for her new garage. In each of these situations, local officials are thrown into a quandary. How should they act? The laws governing public officials concentrate mostly on what they have to do, not on how they are expected to do it. There are open meeting laws, of course, and access to public records laws, but rules of conduct are not part of the municipal code. Although a handful of towns and villages have adopted ethics policies, most of Vermont gets by on a sense of what’s right at the time, without any overriding direction on conduct. This report offers several ideas to address some of the problems facing local officials. It begins by recognizing that the laws we have in place are generally good for what they attempt to do, but that there is a dearth of good law on the way local officials should behave while holding public office. 1. The Law We Have. School districts have the most comprehensive laws on conflict of interest. All purchases of goods over $5,000 must be put out to public bid. No member of a board may vote on any issue involving a direct benefit to himself or herself. Towns have no similar statutes to guide them. Officials acting in a quasi-judicial capacity are also governed by a law on conflict of interest. No one with a direct or personal interest in the outcome of a decision may participate in that case. The law even proscribes hearing a case involving near relatives, by blood or marriage, and defines where to draw the line. 12 V.S.A. § 61. This law applies to zoning boards, planning commissions, boards of civil authority, and select boards when they act in a quasi-judicial capacity. There are several laws limiting dual office holding. See 17 V.S.A. § 2647; 24 V.S.A. § 1622. Select board members on planning commissions have no voting authority. 24 V.S.A. § 4322. The Municipal Administrative Procedure Act, which is available for use by Development Review Boards, contains a section on conflict of interest. That’s about it for statutes. The Vermont Constitution, of course, applies to every public office. It declares all local (as well as state) officials, the trustees and servants of the people, and holds them, at all times, in a legal way, accountable to the people. Vt. Const. c. 1, Art. 7. The common law echoes this idea. In 1877, the Vermont Supreme Court ruled that select board members who acquire a "a pecuniary interest in any claim allowed, whereby they reaped a profit to themselves, the town would be entitled to the benefit of such profit, upon the familiar doctrine that applies to agents, trustees, administrators, and all other persons who stand in fiduciary relations to others, that such persons shall make no profit to themselves against those for whom they act." Davenport v. Town of Johnson, 49 Vt. 403, 407 (1877). From this wooden language in an old case there is a rule for conduct of all public officers. Any profit made while serving, which the town could earn, through the action of an officer, belongs to that town, and not the officer. This does not mean that no one may bid on a town contract, but if a benefit accrued to a public officer on account of his or her position, that benefit would belong to the town. 2. What We Lack. Perhaps such decisions should be made locally. How then can Vermont law encourage and enable the adoption of such local laws? The answer is very simple: by providing a mechanism for the adoption of ethics policies in towns that want them, and good models to serve as the foundation for local codes of conduct. The state also needs to look at several procedural problems. Suppose a majority of the members of a board has a conflict of interest. Who makes the decision? Suppose some go south for the winter. This should not be a problem. In either case, the remaining board members should be able to appoint temporary, alternate members to replace those who have stepped down. 3. Proposals. a. Conflict of Interest. Vermont law ought to provide a general enabling statute defining what constitutes a conflict of interest, which municipalities who wish to adopt ethics policies or ordinances may use. The definition ought to include at least the following: that anyone with a personal or financial interest in the outcome of any decision that would affect an officer’s ability to render a fair and impartial judgment or decision ought not to participate in the decision. Towns should be free to adopt their own additional features for local ordinances, including further defining when a personal or financial interest would affect an officer’s ability to render a fair and impartial decision. The law should be changed to allow the decision on whether a member has a conflict to be made by a majority of a remaining members, as well as the individual member. Beyond that, Vermont law should leave the particulars to local ethics ordinances or policies. b. Ethics Ordinances. The Village of Essex Junction and the Town of Colchester are among the communities who have drafted their own ethics policies. These policies are strong endorsements of the idea that the best laws come from those who are closest to the problem. Rather than telling towns what policies they should have, state law should authorize towns to adopt ethics ordinances either by direct action of the legislative body or through a petitioning process. This would take the form of three short legislative changes, first, by adding a new subsection (20) to 24 V.S.A. § 2291, to read that a town, city or village shall have, among its powers, the power to "define, regulate and prohibit conflicts of interest of local officials by ordinance." Secondly, to authorize towns to include conflict of interest and other ethical directions to town officers in their personnel policies. 24 V.S.A. § 1121(a). A change is also required in 24 V.S.A. § 1972, by adding a new subsection (d) to read, "Voters of a municipality may also file a petition proposing the adoption, amendment, or repeal of any ethics ordinance, by a petition signed by at least five percent of the checklist. The method of adopting the ordinance described in this chapter shall otherwise be followed." This change would allow towns where voters recognize the need for an ethics ordinance to require their town officials to be bound by it, even if the officials are unwilling to propose the same themselves. Once an ordinance is adopted, it should be available for amendment as any local legislation. This idea has an added benefit of enfranchising voters to propose and adopt local ordinances. Without this authority, voters have no direct authority to propose changes they feel are needed. c. Secretary’s Role. The Secretary of State’s office ought to include among its services a compilation of examples of ethics policies from the various towns. It should offer educational programs and pamphlets relating to conflicts of interest and other ethical challenges, in order to sensitize everybody to the impact even appearances of conflict have on public trust of government. d. Alternates for Every Office. When two or more members of a board or commission have a conflict, there is an impact on the ability of these bodies to function. There ought to be a general state law authorizing boards to appoint temporary alternates for appointive positions, to be chosen by the remaining members of the board (or the legislative body) for the purpose of ensuring that every decision has a full quorum of members to decide it. The law might also provide for the election of alternates to elective positions, such as the select board. This could apply whenever a member must step down or is unavailable for any purpose. It may inspire people to serve in local office. e. Oaths for Every Officer. It must be an oversight that not all public officials have to take the oath of office, swearing or affirming that:
Vt. Const. c. 2, § 56. But the present law dictates that only clerks, the select board, constables, listers, grand jurors, fence viewers, and the school board take the oaths. Why not treasurers, auditors, moderators, zoning board members, planning commissioners, zoning administrators, town managers, and every other local office? What difference will it make? Read the words again, and think about them. That’s what every public officer will do for every term he or she is elected or appointed. It will help. |
