The City’s Ethics Commission has requested outside counsel to review the legality of the mayor’s appointment of a new ethics officer after the commission worked to replace that office with the Office of Ethics, Compliance and Oversight, which is part of the City’s Charter.
The commission met Wednesday, the same day that Mayor Alvin Brown appointed Senior Assistant General Counsel Jon Phillips as the acting City Ethics Officer. He may serve for 60 days before Council approval is required.
Ethics Commission Chairman Braxton Gillam and Carla Miller, director of the ethics and compliance office, met with Chris Hand, Brown’s chief of staff, Jan. 13 to discuss a budget transfer to fund the compliance office and eliminate the ethics office.
Gillam said he and Miller were assured by Hand that the mayor wanted to “do the right thing” when it came to ethics, but the commission didn’t agree with his appointment of Phillips. “I’m glad to hear that Chris iterated to (Gillam) that the mayor wants to ‘do the right thing,’ but it is in my estimation that his actions don’t show he is doing the right thing,” said Kirby Oberdorfer, a member and former chairwoman of the ethics commission.
“I don’t know by, either intentionally or unintentionally, trying to eliminate the ECO office by not funding it is the right thing. And I certainly don’t think appointing an ethics officer that also happens to be an employee of the General Counsel’s Office with a direct conflict of interest with those that the ethics office may investigate is the right thing,” she said.
Oberdorfer said the right action would be to seek advice of outside counsel for an opinion on whether or not the mayor’s appointment was legal.
“I think we need to get special counsel to investigate whether the appointment of Jon is in compliance with the ethics code and whether it’s legal and whether it’s a conflict of interest,” said Oberdorfer.
Assistant General Counsel Jason Gabriel is the commission’s legal counsel and he was charged with informing the Office of General Counsel of the ethics commission’s request.
Oberdorfer cited a recent issue that provided an example of a conflict of interest with the Office of General Counsel.
The General Counsel’s Office requested that Ethics Director Carla Miller pay back $3,100 she was paid since July 1 because the ethics officer was previously appointed by the mayor and Brown had not appointed Miller. Brown’s office claims Miller’s term officially ended July 1.
The commission said it couldn’t see how its legal counsel supplied by the Office of General Counsel could provide legal advice on the payment issue without having a conflict of interest.
The City now has two ethics officers, both appointed on an emergency basis because of vacancies. Both are subject to City Council approval and both are serving the ethics needs of the City. Miller is not receiving a paycheck for her efforts, which includes maintaining the City’s Ethics Hotline.
Miller and the ethics commission have stated that the new ethics compliance office was created to replace the City ethics office, but the City ethics office was not planned to be removed until the new office was functioning.
The mayor’s office expects the Council to address the issue of two ethics offices and the budgetary issue facing the ethics compliance office, which has no funding presently.
“That question of having two ethics offices is something the Council may want to address, as well as the budget issue that’s come up,” said Hand. “Certainly, we can’t infer what their intent is. They are going to have to speak to this.”
According to Ordinance 2011-197, passed by the Council in June:
“Section 3. Transition. It is the intention of Council that the Office of Ethics, Compliance, and Oversight be budgeted and operational commencing with the 2011-2012 fiscal year, and that all positions of this office be filled with existing budgeted city positions and that no additional funding be necessary to staff the office.”
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