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Our Official Statement after Delegation Passage of Ethics Act Revision
As you have probably heard by now, revisions to the county’s Ethics Act were passed by the General Assembly and voters will have a chance to approve or disapprove of them in November. Considering last year’s problematic revisions and those suggested by some legislators this year before the General Assembly’s recess due to the pandemic, we are relieved by the legislation that was passed. The many revisions that threatened the independence of the Board of Ethics and that would have dramatically weakened its authority and its policies and procedures were not included in the final bill.
In addition to actively working to encourage voters to pass the Ethics Act revision bill in November, we will be monitoring how the House and Senate delegations fulfill their appointment responsibilities. It is important to us that they make a public call for nominations and they use a vetting process that results in a board of diverse, qualified, and independent citizens from throughout the county.
What are the major revisions to the Ethics Act?
3 members will be appointed by the House legislative delegation
3 members will be appointed by the Senate legislative delegation
1 member will be appointed by the Tax Commissioner
2 Alternate Members will be appointed by the Clerk of Superior Court
You may be wondering why judges were not included in the appointment process. It turns out that a 1995 opinion issued by the state’s Judicial Qualifications Commission (JQC) stated that judges should not make appointments to or serve on Board of Ethics due to possible future conflicts if any of these matters were to result in litigation. Ed Williams of Concerned Citizens for Effective Government uncovered this opinion (Opinion 222) and brought it to our attention.
To respond to the unsubstantiated “judge-jury-executioner” criticism of how the Ethics Officer handled and investigated complaints, a new position was added to the staff of the ethics office. An Ethics Administrator will receive and review complaints, notify the subjects of complaints that a complaint has been filed, and report the complaints to the Board for decision-making about further investigation by the Ethics Officer. The Ethics Administrator will be selected by the Board of Ethics and serve at the pleasure of the Board. The Ethics Officer, at the direction of the Board, will continue to do preliminary investigations to determine jurisdiction and probable cause, in addition to pursuing previously mandated duties, including educating and training county employees and officials, advising officials and employees regarding disclosure statements, urging compliance with the code of ethics, and monitoring and acting upon information obtained from the “ethics hotline.”
Addition to Proscribed Conduct re Receipt of Gifts
The legislators added a new subsection that states no employee of the Purchasing and Contracting Department shall accept any gift of value from anyone who has had or may be anticipated to have any business with or before the department. This was already in effect, but it will now be added to the code.
An addition was made to the section dealing with Disclosure of Interests in which officials or employees with a potential conflict of interest in a matter shall recuse themselves from participating or taking any official acts or actions in any manner of the county affected by that individual’s conflict of interest. This, too, has been policy, but will now be in the code.
How can we implement a better Board of Ethics appointment process that meets the constitutional test established by the Georgia Supreme Court?
Rather than having private community groups appoint board members, they could nominate candidates for the Board of Ethics. Elected officials would then appoint from the pool of nominees. This is a very simple change to the current ethics act. It doesn’t require a referendum.
Other local governments affected by the State Supreme Court decision (such as City of Atlanta) have already adopted this simple change.
What role can/should the Charter Review Commission play in revising Ethics legislation?
The Charter Review Commission is not yet formed. We don’t know when it will be formed. However, it is our viewpoint that, if and when the commission is formed, we could have those well-qualified people discuss any additional “fixes” to improve the Board of Ethics and strengthen the Code of Ethics.
In the meantime, the DeKalb legislative delegation should stay focused on the immediate issue at hand: revising the appointment process in a timely manner so the Board of Ethics can get back up and running.
I’ve heard that the ethics officer and the Board of Ethics are essentially the judge, jury and executioner all in one. Is this wrong?
That just isn’t the case.
The process works like this:
(1) The ethics officer investigates the complaint to determine if the Board of Ethics has jurisdiction over the matter and if there is sufficient evidence to proceed.
(2) If so, then the person filing the complaint prosecutes the complaint.
(3) The Board of Ethics hears the matter, reviews the evidence, and makes a decision. This unified process assures that the board’s decision-making is informed and swift. Any decision can be easily appealed to Superior Court if desired by the parties involved.
To emphasize: There is no single person or board that is a judge, jury, and executioner. The current rules assure that the process is well considered, balanced, can be appealed, and is fair.