Critic says New Orleans Ethics Review Board falling short of what it should be doing, but its chairman disagrees _lowres

Advocate staff photo by BILL FEIG. Photo shot on 11/17/10 --- Trax #00023846a --- Slug: Records ---- David Marcello, left-executive Director Public Law Center at Loyola University, testifies during a Joint meeting of the House and Senate Governmental Affairs Committees in response to study resolutions and in this case, public records.

New Orleans government has made huge strides in ethics enforcement since Hurricane Katrina, but one of its landmark achievements is falling far short of its potential, lawyer David Marcello, executive director of the Public Law Center and a longtime advocate for reform in New Orleans, said in an article released last week.

Marcello said he believes that the Office of Inspector General and the Independent Police Monitor’s Office, despite some internecine squabbles, are performing at a generally high level — conducting analyses and issuing reports that are helping to keep the governmental bodies they oversee on the straight and narrow.

But the Ethics Review Board — which hires the inspector general, among other duties — has much more modest aims than Marcello thinks it should.

Following its creation in 2006, the board “lost focus on its legal responsibilities, and, distressingly, it abandoned local ethics enforcement,” Marcello said in the article written for publication in a law review.

Ethics Board Chairman Michael Cowan, a Loyola University professor, called Marcello’s assessment a “simplistic distortion” of the board’s duties and powers.

Marcello has several critiques of the seven-member board. He said it lacks diversity — at the moment it has no female, Asian or Latino members — and it routinely violates sunshine laws, in particular by going into executive session without stating a reason.

But his biggest gripe is that the board generally doesn’t enforce the city’s ethics code. He noted that the Independent Police Monitor’s Office and the Office of Inspector General are “monitoring” agencies with no enforcement ability; the Ethics Review Board is the only one of the three that can enforce the law.

But Cowan said the board lacks enforcement jurisdiction in many instances.

“There’s a state ethics code and there’s a city ethics code. ... Almost everything in the city code is part of the state code,” Cowan said. “We are not permitted legally to enforce the state code even when violations of it happen in Orleans Parish.”

The Ethics Review Board, like the Office of Inspector General and the police monitor, was created with broad public support after Hurricane Katrina.

The question of whether the agencies are performing up to par is personal for Marcello: He chaired the committee that in the mid-1990s paved the way for the establishment of the board and its offshoots, and he served as pro bono counsel for both the Office of Inspector General and the Ethics Review Board in their early years.

In Marcello’s view, the board was meant to function like the state Board of Ethics, but at the local level. But instead of taking up cases — and ultimately deciding them, like a court — the Ethics Review Board has simply referred them to other agencies, including the state Board of Ethics, the Office of Inspector General, the Independent Police Monitor’s Office and the Police Department’s Public Integrity Bureau, Marcello said. If those agencies decide not to take up the cases, that’s the end of the road.

Marcello said that’s unfortunate because the city’s ethics code includes some items that aren’t covered elsewhere, such as a prohibition against discrimination on grounds of race, sexual orientation, religion and other factors.

“As I read the code of ethics, if they (the members of the Ethics Review Board) don’t enforce it, nobody will,” Marcello said. “There is overlap, and certainly where the state Board of Ethics intends to take action, they should be deferred to. In a world of limited resources, you have to have a triage system.”

Cowan said the local ethics board has not addressed every complaint brought before it. But the board has chosen to allow other bodies, including the state board and the federal Equal Employment Opportunity Commission, to take on the job of enforcement so that it can keep its costs down and avoid duplication of effort, he said.

“For us to become an enforcement body, even if we wanted to, we would be looking at a very significant increase in the budget,” Cowan said. “That money would have to come from the (budgets of the) OIG or police monitor.”

But Marcello said some of the cases the Ethics Review Board has sent to the state board have been kicked back to the Ethics Review Board, where they have languished. He said the board has “atrophied over the past five years, almost to the point of extinction.”

Cowan replied that the board is still active and has determined that the greatest part of its job should be to serve as an ethics educator, providing training for city workers, boards and commissions.

“Enforcement happens after someone has been accused of doing something,” Cowan said. “In fairness to our employees, we should be educating them.”

The board is close to signing a contract with an ethics trainer who will work with city employees on understanding ethics rules and applying them to their work, he said.

In a sidebar to his main article, Marcello envisioned what sorts of questions a “reinvigorated” ethics board might take up. “Does the NOPD’s ‘you lie, you die’ policy merit application to other city employees?” he asked. “Should the city’s nepotism policy be more inclusive than state provisions?”

The Ethics Review Board, he said, could propose new policies on those questions, and ultimately enforce them if they were adopted.

Cowan said he agrees with Marcello that the Ethics Review Board should consider what’s in the city’s ethics code and whether it should be updated. But he argued that the board would have to be careful not to overreach its authority. Applying the NOPD policy to other city agencies, for instance, would be dangerous and would give the board too much power, he said.

Cowan said the Ethics Review Board’s legal counsel will address Marcello’s article at its board meeting on Tuesday.