By Martha Perego, ICMA-CM

 

Back in the day, it was all about “sunshine.” Sunshine was the disinfectant that would wipe away the haze of machine politics and outright corruption that infected government. A little-known fact is that it was Utah, not Florida (the Sunshine State), that adopted the first of the sunshine laws back in 1905.

The favored term now is “transparency.” It’s what every stakeholder insists upon for their governmental organization. The expectation for it is heightened when the government does something perceived to be wrong. But transparency isn’t just a standard that gets dusted off and reinvigorated in times of crisis. The value is embedded in the way local governments operate. From procurement to land development to capital investments to financial health, processes are purposefully designed to be transparent and open to provide for both input and observation.

Technology has exponentially elevated expectations for transparency. From council meetings broadcast via Facebook Live to cell phone videos from the field, the public now expects to know everything that is happening when it’s happening. This all works to the professional’s benefit. Transparency is a cultural norm that is essential for building trust with the public. The more information and details people have about what is happening, the more confidence they have in the organization, even when things go wrong.

Transparency will eventually conflict with the value of confidentiality. It’s the classic “right versus right” values dilemma. Organizations will feel the tension between meeting the public’s demand for instant answers and perhaps an employee’s right to due process. Or with relentless social media coverage on an issue, they will have to resist the urge to do damage control by presenting partial facts before the complete investigation is available for public scrutiny.

Regardless of good intent, maintaining confidentiality may be viewed by some as a self-serving. Protecting reputations and rights can appear to be a smoke screen. Faced with that perspective and pressure, all organizations must carefully consider their legal, as well as ethical, obligation when it comes to confidential matters.

Transparency vs. Confidentiality in ICMA’s Ethics Enforcement

ICMA faces the same challenge in our approach to enforcing the Code of Ethics. ICMA’s ethics review process is totally confidential until the ICMA Executive Board decides that a public censure, expulsion/bar, or temporary suspension is appropriate.

From the instant the story of alleged unethical conduct breaks and compels someone to file a complaint with ICMA until the final decision of the board, we will not comment on whether a member is under review. No external party beyond the complainant will even know that the matter is under review. And therein lies the problem. The constant media coverage of an ongoing ethics scandal can harm the community where the alleged unethical conduct happened, as well as the profession. Some ask why doesn’t ICMA just weigh in to say that the “culprit” is under review? Or why not just condemn the bad behavior to reinforce the profession’s high standards? Doesn’t staying quiet shield the individual from accountability?

Adding to the complexity is the reality that ICMA’s review may conclude that the member’s conduct was unethical, but the appropriate sanction based on the facts is a private censure. A private censure by its very nature is a confidential matter. Beyond the member, notice goes only to the complainant and state association president of the outcome (assuming that both are ICMA members). The same holds true if the review exonerates the member. It remains confidential. Only the member who is the subject of the complaint can break the confidentiality of the process to reveal the outcome.

The absence of public confirmation that a matter is under review and certainty around the outcome can cast doubt on the value of the enforcement process. Why take this approach then? For two critical reasons. First, the facts presented to support the alleged misconduct are not always correct. Almost 40 percent of the cases referred to ICMA are closed because the facts demonstrate that the member’s conduct was ethical. Second, consider the potential reputational damage if it were publicly revealed that an individual was the subject of an ethics complaint before the review was completed.

In the interest of transparency, we do want to report the private censures issued by ICMA over the last year. The 14 private censures issued addressed violations of Tenet 7 (Political Neutrality) or Tenet 3 (Integrity).

Conduct that Violated Tenet 7, Political Neutrality:

• Endorsing a candidate for elected office and speaking at a campaign event on behalf of that candidate.
• Involvement in a petition effort to recall a member of the governing body.
• Making a single $250 campaign contribution to a candidate running for a federal office.
• Running for partisan elected office while serving as a county manager. The member mistakenly thought their ICMA membership had expired, which was a factor in the decision for private censure.

Conduct that Violated Tenet 3, Integrity:

• Unprofessional comments in a media interview about the governing body.
• Inappropriate comments on social media about the member’s former organization.
• Seven cases where the member failed to meet their obligation to serve a minimum of 2 years including: (1) 18 months into the role, the city manager accepted a position in another organization. The tenure ended up being 22 months. (2) Applying for a better position after serving for only 15 months in the organization. Ultimately, the individual did not leave their position. (3) Serving for 22 months and citing personal reasons for the early departure that did not meet the limited exceptions in the length of service guideline. (4) Serving for six months before accepting a preferred position closer to home. (5) Serving 10 months in the position before accepting the position as city manager for another community. (6) Citing personal reasons to return to a position in their hometown after serving only three months. (7) While selecting two challenging organizations to manage, the member left each before serving two years and without valid reasons.
• Verbally accepted an offer, but withdrew to remain in their current position.

As we balance these values in enforcing the values of the profession, please take time to read the ICMA Code of Ethics, seek confidential advice from ICMA when needed, and hold your peers accountable for their conduct.

Martha Perego, ICMA-CM, is ethics director, ICMA, Washington, D.C. (mperego@icma.org).