David Marcello Credit: Tulane University

Ten years post-Katrina, New Orleans has a healthier ethics environment than before the storm, thanks to the creation of three local entities: the Office of Inspector General, Office of Independent Police Monitor, and Ethics Review Board (ERB). But the story of local ethics reform was not written in a single chapter and the book thereafter closed. Civic sector advocates had to step up repeatedly, strengthening and safeguarding the three local ethics bodies in an ongoing process of reform.

We returned to the City Council for ordinance revisions. We went to Baton Rouge for additional legislative support. We went to the voters with a 2008 charter proposition that allocated three-quarters of one percent of the city’s operating budget to assure financial and operational independence for our three local ethics entities.

Ten years later, ethics reform remains an ongoing process.

I released a report in July assessing inadequacies in the ERB’s performance. It was accompanied by two sidebars, one examining erosion of ERB enforcement, the other looking ahead to the future of ethics enforcement. Instead of evaluating the article’s conclusions and instituting ethics reforms for themselves where appropriate, the ERB sidestepped my concerns and chose to criticize my methods.

This column is a response to my critics, examining one by one each of the five principal findings in my report:

  • The ERB has repeatedly violated Louisiana’s open meetings law.
  • ERB members failed to file annual income-disclosure statements.
  • The ERB does not seem to know whether it controls its own budget.
  • The ERB’s current membership violates city code diversity requirements.
  • The ERB has abandoned enforcement of the city ethics code.

Using the links to relevant documents and points of law, readers can make up their own minds about the need for ongoing reform at the ERB.

Violations of the open-meetings law

I was criticized for reaching conclusions about the ERB’s multiple “sunshine” law violations without talking to the board’s former general counsel. Apparently, some people felt it wasn’t enough for me to rely on the ERB’s own minutes.

Consider the Latin legal term, res ipsa loquitur. It means “the thing speaks for itself.” And so it is with the ERB’s minutes. They speak eloquently about the failure to comply with Louisiana’s open-meetings law, which guarantees public access to government meetings. Over a five-year period, three out of every four ERB meetings convened in executive session — a session from which the public is barred — and they went into executive session without giving a reason, as the law requires. Every executive session held without preserving legally permissible reasons in the minutes constituted a separate and distinct violation of the open-meetings law.

Many might find this conclusion hard to believe. I did. No one expects an ethics body charged with promoting “transparency” in government to have a 75 percent failure rate in complying with the open meetings law.

But that’s what the ERB’s own minutes tell us, and there’s no talking your way around it. The public record reveals that 30 out of 40 ERB meetings from 2010 through 2014 violated the sunshine law.

Those were not the only sunshine violations. ERB agendas repeatedly provided inadequate public notice by announcing executive sessions to discuss “matters deemed confidential” and then citing a provision of the law that lists every legally permissible reason for meeting in executive session. My article described this as the “go fish” procedure for retreating into executive session. The public is entitled to a single, specific reason why the public body is meeting in executive session, not every possible reason. Telling them to go look at all the legally permissible reasons doesn’t satisfy sunshine legal requirements.

The third discrete open-meetings violation involved agendas that listed executive sessions to discuss “prospective litigation” but failed to identify the parties involved or the subject matter. Those two items are expressly required by Louisiana’s open-meetings law; failing to list them on the agenda is a violation on its face.

Res ipsa loquitur: Read the minutes and read the law. They document a disturbing record of failure to comply with sunshine laws.

In the two months since my article was released, we’ve heard sound and fury and resentment about how unfairly I treated the board. What we haven’t heard is any substantive response from the ERB explaining why my conclusions about serial sunshine law violations were somehow wrong. During the five years from 2010 through 2014, the ERB was either in compliance or in violation of the open meetings law. Which is it?

The board could make a start toward wiping the slate clean by acknowledging that “mistakes were made” and pledging to do better in the future.

Failure to file income-disclosure statements

I was criticized for not talking to board members before releasing my article. The implication seems to be that if we had communed together in advance, like reasonable people, we could have worked everything out without all the unpleasantness of the last two months — right? Well, not exactly.

We tested that proposition at the ERB’s May meeting, and the outcome didn’t inspire confidence.

After reading years of ERB minutes, I realized that members were relying on two outdated state ethics opinions to avoid filing annual income-disclosure statements. Newly appointed ERB members risked becoming first-time violators as the May 15 filing deadline approached. I chose not to sit idly by and let a violation occur because board members were unaware of a possible problem.

On May 5 I sent an email to the head of the ERB, informing him of my concerns. He asked for a fuller explanation of the problem, and I then gave him two ethics opinions, one from February 2009 and one from December 2009 obtained during the start-up years while I was serving pro bono as the ERB’s general counsel. When “financial disclosure” appeared as a new item on the board’s May 12 meeting agenda, I decided to attend, in case anyone had questions about the annual filing requirement. At the meeting I was asked to explain my concerns, which I did.

The state ethics opinions exempted ERB members from filing annual disclosure statements because the ERB didn’t have power to spend $10,000 or more of public funds during those start-up years. Both ethics opinions explicitly said that if and when the ERB acquired power to commit $10,000 or more of public funds, the Louisiana Board of Ethics would need to revisit the matter. Both opinions strongly implied that the outcome would be different: ERB members would need to file annual income-disclosure statements when the board became able to spend $10,000 or more of public funds.

The minutes documented multiple ERB decisions committing $10,000 or more of public funds. Motions approved spending $15,000 to hire an ethics education expert, $30,000 for an RFP selection process, $35,000 for other purposes. My conclusion: The ERB needed a new opinion from the state Board of Ethics. I made these points at the May 12 ERB meeting. All seven ERB members were there. My remarks provoked quite a discussion.

First, an ERB member cited back at me the two state ethics opinions that I had supplied to the board in the first place. This did not reassure me that the opinions had actually been read. Reading them reveals that the $10,000 threshold makes all the difference between being required to file annual income-disclosure statements or being relieved of that obligation.

The board’s discussion covered the waterfront. Some members felt income disclosure should be a matter of individual choice — file if you think it’s appropriate, and for those who feel otherwise, don’t bother. Others felt that whatever the board did should be done as a group — either all file disclosure statements, or no one does. Some members felt they should file disclosure statements because this was the ERB, and filing would be the right thing to do, presenting a model of transparency in government whether filing was legally required or not. But one member said he wasn’t prepared to file a form that he had never seen. After about 20 minutes, the discussion ended with no income disclosure. The board agreed to talk more about it next year.

I got an email from the ERB chair on the following day, asking if I felt the board had dealt seriously with my concerns. I replied that it had surely engaged in a serious discussion, but added that I was astounded at the lack of legal focus. Putting off till next year a decision about whether to file income-disclosure statements did nothing to resolve questions of compliance during the current year — and I pointed out that the deadline for complying with the law in 2015 was then just two days away.

I had a lot more to say in that May 13 email. Those who are interested can read it for themselves.

It’s been suggested that the ERB first get a legal opinion about whether members are required to file annual income-disclosure statements. Then, after they know the answer to that question, the ERB could talk some more about filing financial-disclosure statements, even if they’re not legally required but just because it’s the right thing to do. This approach flips the principle of the thing on its head. If it’s “the right thing to do,” why not just get it done, without waiting around for a legal opinion?

I communed with the ERB in May, well before my article was released in July. Talking to the board ahead of time did not get the job done. After hearing from me via email and in person, the ERB considered complying with income disclosure requirements, then declined to do so at its May board meeting. Two months later, the ERB announced their deep distress that I hadn’t talked to them ahead of time — which of course was wrong on the facts. And then, once again, the board took no action on income disclosure at its July board meeting. Sept. 21 will be the next opportunity for the board to announce its position on income disclosure. Will they or won’t they? Inquiring minds want to know, for sure.

Confusion over budget control

I surfaced these income-disclosure questions because of a related, urgent concern that is central to the mission and capacity of the ERB: budget control. Financial independence is vital to the operational independence of ethics bodies. If the ERB does not control its own budget, its mission could all too easily be subverted by a hostile city administration.

Suppose, for example, that the ERB needed approval from the city’s chief administrative officer (CAO) to spend $10,000 or more on its legally-required national search for a new inspector general. Now suppose that the chief administrative officer rejected the request, saying in response, “Oh, you don’t need to look nationally. We’ve got lots of good local candidates, and in fact I know just the one you need to hire.”

Or suppose the ERB attempted to enforce an ethics code violation against a board or commission member or department head who had been appointed by the administration and needed the chief administrative officer’s approval to access funds. These examples make clear why New Orleans voters approved a 2008 ballot proposition that guaranteed reliable, dedicated funding for the three local ethics entities and gave them independence from the political whims of any particular city administration.

If the ERB controls its own budget and spends its own funds, then ERB members must also begin filing annual income-disclosure statements. But it seems unclear — even to the ERB — whether the board has the authority to control its budget.

ERB responses to date have brought only more confusion, not greater clarity, as the question was answered both ways. My May 13 email asked, “Does the ERB control its own budget?” The Chair’s reply email said, “Yes, that is precisely the case.” Then two months later, a July newspaper story reported the ERB’s position as, “We must still get approval from the chief administrative officer to commit $10,000 or more of public funds.” Which is it: budget control or CAO approval? We need to know the answer.

Lack of diversity

My article pointed out the lack of diversity on the board, which is currently devoid of women, Asian, or Hispanic members.

These observations intend no offense to the seven men currently serving on the ERB. They arrived on the board through decisions made by others — specifically, appointments made by the mayor and confirmed by the City Council.

I’m not blind to the diversity and equity goals served by robust African-American representation on the board. New Orleans has not always had the greatest track record in this regard. We’re doing better these days, and that’s a good thing.

But we can do better still by appointing board and commission members who reflect the broad diversity of the community they serve. The City of New Orleans places a high value on this principle. We have a diversity requirement in the city code. The extraordinary lack of diversity on the ERB should be remedied with the next available opportunity to fill a vacancy. ERB membership has been out of compliance with the city code’s diversity requirements for a year-and-a-half; it’s long past time for that to change.

Abandonment of local ethics enforcement

I’ve saved the biggest and most difficult question for last: What is the ERB’s proper relationship to enforcement of the city ethics code?

Here’s what the Home Rule Charter says in Section 9-402: “the Council shall by ordinance establish an Ethics Review Board and shall authorize it to enforce the provisions of the Code of Ethics.” (Emphasis added.) That seems pretty straightforward. The charter charges the ERB with responsibility for enforcing the city ethics code. If they don’t do it, nobody else will.

I’ve been criticized as being “too simplistic” with regard to ethics enforcement. The reverse of “too simplistic” is “needlessly complicated,” which has often characterized the ERB’s approach. Let’s try the simple way one more time.

The Louisiana Code of Ethics deals with financial conflicts of interest. The city code of ethics deals with many other matters nowhere mentioned in the state ethics code.

What the ERB does not have is the luxury of “taking a pass” on local ethics code enforcement, because that leaves a vacuum no one else can fill.

Consider “nondiscrimination,” which is addressed in the city ethics code. Nothing remotely like it appears in the state code. The city’s nondiscrimination provision rounds up the usual suspects — race, religion, national origin; but it goes further by prohibiting public discrimination based on sexual orientation. If a city clerk refused to issue a license or permit to a same-sex couple, we could address that discriminatory conduct — under the city ethics code. We are one of the few municipal jurisdictions in the country with a local board empowered to punish municipal employees for public discrimination based on sexual orientation. That’s an important ERB enforcement power; so are the ERB’s powers to take enforcement action against public discrimination based on race, religion, or national origin. But these important ERB powers are of no consequence whatsoever if the ERB refuses to exercise them.

My article explained why the board has authority under the Home Rule Charter to perform this enforcement role. But I was told in response to one of my public record requests that the ERB no longer does ethics enforcement. Its activities are currently restricted to ethics education and receiving reports from the Office of Inspector General. The ERB needs to jettison that all-too-comfortable definition of its duties, press the “reboot” button, and get about doing what the Home Rule Charter directs it to do: “enforce the provisions of the Code of Ethics.”

The ERB should also accept the Home Rule Charter‘s explicit invitation to “establish additional recommendations for the Code of Ethics.” Surely a national survey of “best practices” among other municipal ethics bodies might suggest a few areas where New Orleans’ ethics code could be improved; but to date, our local ethics board hasn’t found a single worthy recommendation to pass along to the City Council.

The ERB has the power to enforce the city ethics code. They can ask the City Council to give them more power by ordinance, if they feel they need it. What the ERB does not have is the luxury of “taking a pass” on local ethics code enforcement, because that leaves a vacuum no one else can fill.

Moving beyond criticism to corrective action

The struggle for ethics reform has been a long and bruising battle fought over many years. My article highlighted shortcomings at the ERB and in doing so, raised a few more bruises. But the article was not simply and singly critical of the ERB’s past performance. The article contained numerous recommendations for reform. The ERB has the capacity to be a self-correcting mechanism.

What has the article accomplished at the ERB thus far? Well, as the saying goes, “First, you have to get their attention.” That’s been accomplished.

The ERB appears to be working its way through the five stages of grief. We’ve seen anger and denial. More recently, they’ve been into bargaining and depression. (“We’ve got some diversity after all, don’t you think? Sigh . . . .”) What will we see when the ERB arrives at the acceptance stage?

  • I believe the ERB will ultimately acknowledge its unfortunate five-year history of sunshine-law violations and will pledge to do better in the future.
  • I believe ERB members will decide to file annual income-disclosure statements.
  • I believe we will see a more diverse ERB with women, Asians, and Hispanics appointed to serve — and it can’t happen soon enough. City leaders need to assure that the next vacancies are filled by appointees who reflect the multicultural richness of New Orleans.
  • We need to see an unambiguous assertion of budget control by the ERB because it’s so essential to the board’s independence and its ability to perform vigorously as an ethics watchdog.
  • Above all, we need to see collaboration, with the inspector general conducting investigations and the ERB holding hearings, finding violations, and providing enforcement of the city ethics code.

Aeschylus, the playwright of classical Greek tragedies, described the learning process this way: “ … against our will, comes wisdom to us by the awful grace of God.” Perhaps in time, the ERB will find the good grace to correct its course, overcome past problems, and fulfill its role as the defender of ethics in city government.

David Marcello is director of Tulane University’s Public Law Center.