Tulane law expert: Why 2015 could be landmark year for New Orleans ethics reform _lowres

Marcello

It’s been a year of “ups” and “downs” in city ethics in New Orleans, but ultimately, 2015 may be regarded as a landmark year of reform.

Consider the Office of Inspector General and Police Monitor. They’ve battled publicly and privately over “turf” questions for years. Hostilities erupted into threats of firing and counter-charges of bias during September and October. They appeared headed for a train wreck.

But in November, the New Orleans City Council quieted the acrimony by approving a ballot proposition to make both offices independent. Voters can complete this reform by approving a charter amendment in April.

We’ve also seen progress at the Ethics Review Board . During September and October, they complied with Louisiana’s open meetings law for the first time in almost six years by convening legally in executive session. They also acknowledged their authority to enforce ethics code violations.

But wait, you might say. What makes those ERB developments noteworthy?

Aren’t ethics boards supposed to champion openness and “governmental transparency”?

Yes, but our ERB violated Louisiana’s “sunshine” laws in three of every four meetings held during 2010-2014.

And aren’t ethics boards supposed to enforce ethics laws?

Yes again, but this ERB abandoned ethics enforcement during the same five-year period.

In July, I identified major problems at the ERB: a 75 percent failure rate in obeying “sunshine” laws; members’ failure to file annual income disclosure statements; abandoning ethics enforcement; and confusion about ERB budget control.

The ERB disputed those propositions in July. But during the last two months, they’ve accepted responsibility to improve performance on all four items.

That’s good, but not yet good enough. Additional changes are needed at the ERB, starting with lack of diversity.

The ERB has been visibly noncompliant with city code diversity requirements for a year-and-a-half. Members do not reflect the diversity of the community they serve.

Diversity became a public issue in July. Two appointments were subsequently made and confirmed in August. But still no women, Asians or Hispanics serve as members.

The ERB cannot solve this problem single-handedly. The mayor and City Council must appoint and confirm more diverse members.

But the ERB could move toward greater diversity if some male members departed and made way for new appointees.

Our home rule charter invites ERB recommendations to improve the city ethics code. That’s never happened. The ERB should start by surveying best practices nationally. A better-informed ERB could seek public input on many worthwhile changes in the ethics code.

Should “you lie, you die” govern not only police but also other city employees with sensitive discretionary powers, as in the Finance Department or at Safety and Permits?

Are disclosure requirements for contractors doing business with city government sufficiently rigorous to prevent conflicts?

Should “nepotism” be defined more broadly than in state law?

The ERB should lead a public conversation about these and other proposals.

The City Council could strengthen ERB enforcement by enacting a schedule of fines.

The council could also authorize the ERB to remove or recommend removal of board and commission members who violate the ethics code.

Finally, the ERB cannot be both Grand Inquisitor (conducting investigations) and High Court (deciding cases).Having the OIG investigate complaints and present its findings in enforcement hearings would eliminate this potential conflict and preserve the ERB as an unbiased decision-maker in ethics cases. The ERB and OIG should promulgate rules to achieve this result.

The OIG, ERB and City Council still have December to make 2015 even more of a landmark in ethics reform. Let’s “Finish Strong!”

David Marcello is executive director of The Public Law Center at Tulane University Law School.