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Municipal Research News - Ethics in Government
Ethics in Government
Should I Tattle?
What should an official do if he or she believes a colleague has committed an unethical (or maybe even a criminal) act? Do you confront the person? Go to the press? Look the other way?
Eight suggestions on how to proceed are offered in an article “Navigating the Perils of Public Service.”1 Here is a summary of the article’s suggestions, along with a table outlining some of the more common ways an official can get into trouble and the consequences or penalties if he or she does so.
So, what should you do?
- Pause and consider what your motives are. Is the desire to report an actual or perceived violation rooted in improving the public’s view of government or to aid the agency’s operation, or is it based upon seeking personal or political advantage? If a violation of law is suspected, is the violation significant, with serious consequences, or is it more a technical violation, with little or no real impact. If the moving force behind the concern is personal or political, or if the ethics violation is relatively inconsequential, it may be better to delay, if not forgo, action.
- Determine what the ethical or criminal violation is. Laws, whether adopted locally or by the state or federal government, dictate what a person must do or not do. Ethics involve what people should do, based upon community values; they may be encapsulated in laws, but do not necessarily need to be. Sometimes a violation will be clear, other times it is not so clear, especially if there are competing standards.
Some cities and counties have adopted local codes of ethics for their officials. If your community has, refer to those standards to determine what the suspected violation is.
The following chart details some of the state laws that establish rules for local officers and the consequences if the rules are violated.
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Prohibition against Interests in Contracts (Chapter 42.23 RCW)
Acts prohibited With certain exceptions, no municipal officer may be beneficially interested, directly or indirectly, in any contract which may be made by, through, or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his or her office, or accept, directly or indirectly, any compensation, gratuity, or reward in connection with such contract from any other person beneficially interested in the contract. RCW 42.23.030.
Penalties Five hundred dollars, in addition to such other civil or criminal liability or penalty that might otherwise be imposed upon the officer by law. RCW 42.23.050.
Forfeiture of office A violation may be grounds for forfeiture of office. RCW 42.23.050.
Effect on Contract The contract is void, which may mean that the contracting jurisdiction will not be required to pay for the goods and services covered by the contract. RCW 42.23.050.
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Personal Use of Public Resources (Article 8, section 7 of state constitution)
Acts prohibited No officer or employee of a municipality may receive property or services, or a loan of money or credit, from the municipality for personal use without providing equivalent consideration to the municipality, unless the receipt was made for the necessary support of the poor and infirm.
Must recover value Personal use of public property or services constitutes a gift and is a violation of the state constitution; the jurisdiction from which the “gift” was taken may (and likely must) recover the value of the property or service given. See Tacoma v. Lillis, 4 Wash. 797 (1892), and Hillyard v. Collier, 133 Wash. 249 (1925).
Crime Improper use, dependent upon the facts, could also be classified as a theft of goods or services, a crime punishable upon conviction as a misdemeanor or felony, based upon the value of the goods or services involved. See RCW 9A.56.030-.050.
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Use of Office or Facilities for Political Campaign (RCW 42.17.130)
Acts prohibited Except in certain qualifying situations, no elected or appointed official or employee of a government agency may use agency or office facilities (such as postage, machines, vehicles, work time) to, directly or indirectly, assist a campaign for election or promote or oppose any ballot proposition. RCW 42.17.130.
Penalties A person who makes improper use of a facility may be subject to a civil penalty of not more than $10,000 for each violation. RCW 42.17.390(3). In addition, a court may require payment of costs, including those for the investigation and trial, and reasonable attorney fees. If the violation is found to have been intentional, the judgment, which includes the costs, may be trebled. RCW 42.17.400(5).
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Open Public Meetings Act (Chapter 42.30 RCW)
Act’s requirements All meetings of a governing body of a public agency are to be open and public and all persons permitted to attend any meeting of the governing body, except as otherwise provided by law (e.g., during executive sessions). RCW 42.30.030.
Effect on action Any action taken at a meeting that is not in compliance with the Open Public Meetings Act is null and void. RCW 42.30.060(1).
Personal Liability Any official who attends a meeting held in violation of the Open Public Meetings Act, if he or she has knowledge that the meeting is in violation of the Act, is subject to personal liability for a civil penalty of $100. RCW 42.30.120(1). The penalty is assessed by a superior court judge in an action that may be brought by any person. There is no criminal penalty for a violation.
Recall If an elected official has knowledge that a meeting is being conducted in violation of the Open Public Meetings Act, he or she may be subject to recall for malfeasance. See Bocek v. Bayley, 81 Wn.2d 831 (1973), overruled on other grounds, Cole v. Webster, 103 Wn. 2d 280 (1984) See, also, In re Recall of Anderson, 131 Wn.2d 92 (1997).
Costs and attorney fees A person who prevails against a public agency in an action may be awarded all costs, including reasonable attorney fees, incurred in connection with the legal action. RCW 42.30.1120(2).
Mandamus/injunction In order to prevent a violation of the Open Public Meetings Act, a person may file a lawsuit in superior court to either mandate (require) that action be taken or enjoin (prevent) an action from taking place. RCW 42.30.130.
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Public Records (RCW 42.17.250-.348)
Act’s requirements Unless a record is exempt or its release is prohibited, a municipality must make its records available for public inspection or copying. RCW 42.17.260.
Penalty and costs If a person is improperly denied the opportunity to inspect or copy a public record, and a court action is pursued, the court may require the agency involved to pay the costs incurred in the litigation, including reasonable attorney fees, plus an amount not less than five dollars nor more than $100 for each day the record was improperly withheld. RCW 42.17.340(4).
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Statutory Ethics Provisions (RCW 42.23.070)
Acts prohibited No municipal officer may use his or her position to secure special privileges or exemptions for himself, herself, or others. No municipal officer may, directly or indirectly, give or receive, or agree to receive, any compensation, gift, reward, or gratuity from a source, except the employing municipality, for a matter connected with or related to the officer's services as such an officer, unless otherwise provided for by law. No municipal officer may accept employment or engage in business or professional activity that the officer might reasonably expect would require or induce him or her, by reason of his or her official position, to disclose confidential information acquired by reason of his or her official position. And no municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit. RCW 42.23.070.
Penalties Five hundred dollars, in addition to such other civil or criminal liability or penalty as may otherwise be imposed upon the officer by law. RCW 42.23.050.
Forfeiture of office A violation may be grounds for forfeiture of office. RCW 42.23.050.
Crime Depending upon the type of action alleged, an officer could be charged with a crime. Bribery is a class B felony; requesting unlawful compensation, receiving or granting unlawful compensation is a class C felony, as is trading in public office or trading in special influence. RCW 9A.68.010-.050. The maximum penalty for a class B felony is a prison term of ten years, or a $20,000 fine, or both; a class C felony is punishable by a prison term of five years, or a $10,000 fine, or both. RCW 9A.20.021(1).
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Misconduct in Office (Article 1, sections 33-34 of state constitution; RCW 29A.56.110)
Recall An elective public official is subject to possible recall and removal from office, if he or she commits an act of misfeasance or malfeasance while in office, or if he or she violates the oath of office. RCW 29A.56.110.
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Election Law Violations (Chapter 29A.68 RCW)
Election contest Any registered voter may contest the right of a person declared elected to an office to be issued a certificate of election for, among other things, the following reasons: the person is ineligible for office; the person was convicted of a felony; the person has given a bribe; or more than one vote was cast by a single voter. RCW 29A.68.020.
Quo Warranto A quo warranto action can be begun to determine whether a person has a right to public office. Green Mountain School Dist. No. 103 v. Durkee, 56 Wn.2d 154, 159 (1960).
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Whistleblower Protection (Chapter 42.41 RCW)
Whistleblowers are protected It is unlawful for a governmental official or employee to take retaliatory action against an employee because the employee provided information that an improper governmental action occurred. RCW 42.41.040(1).
Penalty If there has been retaliation, an administrative law judge may reinstate the employee, with or without back pay, provide injunctive relief to return the employee to the position he or she held before the retaliatory action, and, to prevent any recurrence, award costs and reasonable attorney fees. In addition, a personal civil penalty may be imposed of up to $3,000, payable to each person found to have been retaliated against. RCW 42.41.040(7) and (8). The judge may also recommend that the retaliator be suspended, with or without pay, or dismissed.
- What happens if you don’t act? Or if you do? The chart outlines some of the possible consequences if violations are reported, investigated, found to be true, and punished. Merely reporting a suspected transgression, though, may itself result in consequences beyond those provided by law or official policy; they may create negative press, personal embarrassment, strained relations, the need for and cost of legal counsel, and an impact on future elections. Before proceeding, one should weigh the harm associated with the offending action with the consequences likely to occur if the action is reported or not.
- Speak with others to determine whether they share your concerns, or whether you are acting alone. Gain a better idea about what is going on and whether the suspect action is in fact unethical or unlawful. A colleague, supervisor, human resources person, or legal counsel (city, town, or prosecuting attorney) may be able to provide perspective and, if necessary, correct any misperceptions that may exist as to whether there actually is an ethics breach or other problem.
- Discuss the issue with the person involved. If you, or someone on your behalf, talks to the person involved, it may be possible to either stop an on-going violation or prevent one from occurring in the future. Try to find out why the person has decided to engage in inappropriate or unlawful behavior. Has the person thought his or her decision through, and, in doing so, is logic being applied, or is the person merely supplying unjustifiable excuses for taking the action? And has the person considered the legal, ethical, personal, and operational consequences of the action? Given the potential consequences, can the person be persuaded to alter or forgo his or her questionable behavior? Depending upon the answers, you can then better assess how to proceed.
- Does it make sense to conduct an internal investigation? If there is any doubt about the ethics or legality of the behavior involved, an internal investigation might help confirm or deny those doubts. An internal investigation may allow the city or county an opportunity to react to the conduct. If the suspect activity is merely a violation of an internal rule or policy, an internal investigation may allow an easy resolution. However, if there has been a violation of law, the prosecuting, city, or town attorney should be contacted to see if an internal investigation would be useful or counterproductive. If there is an investigation, findings should be prepared and a course of action outlined.
- Should external enforcement authorities be contacted? If it is determined that additional, external assistance or enforcement is required, there are a variety of persons or agencies that can be contacted, depending upon the nature of the suspected violation. For example, the county prosecutor can be contacted if there is a suspected violation of state law. The Public Disclosure Commission could be contacted if there is a campaign violation. The state auditor and attorney general might intervene if a conflict of interest is alleged, or there is an open meetings violation. A private action could be begun if recall is sought or if records have been improperly withheld. While the press could be contacted, they may not be the best place to start if an investigation is needed or corrective action is sought.
- What can be done to prevent the behavior from happening again? Education may be the key to correcting or preventing inappropriate behavior, and there are agencies prepared to help, if asked. The Public Disclosure Commission provides detailed information on campaign laws, and it will offer opinions on issues, if asked. The attorney general’s office has recently issued model rules to help local governments comply with public disclosure requests. Agency attorneys can be consulted for information on how to identify and comply with laws and procedures affecting government operation. The city and county associations, including the Municipal Research and Services Center, can provide training and materials to help officials live within the law and promote public trust in government.
Whether suspected illegal or unethical behavior exists and, if so, what to do about it, are not easy issues. Analyzing the acts and their consequences, though, may help assure a positive result, with improved behavior, less embarrassment, and improved public trust.
By Paul Sullivan, Legal Consultant
Municipal Research and Services Center
1The August and September 2005 issues of the League of California Cities publication, Western City, presented an excellent two-part article, "Navigating the Perils of Public Service." The article, which discusses ethics in government, provides information on what an official should do if he or she believes another official is performing in an unethical manner. This article is inspired by the Western City article and draws upon its suggestions as to how one should proceed, if wrongdoing is suspected.
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