Ethics in government at the state and local levels is the subject of a new set of principles published by the American Law Institute (ALI), a project led by reporter Richard Briffault of Columbia Law School and associate reporter Richard W. Painter, S. Walter Richey Professor of Corporate Law at Minnesota Law. Principles of the Law, Government Ethics offers guidance on the proper standards of conduct that should apply to current and former public employees and officials.
“While ethical standards for government officials have long been a focus at the federal level, not enough attention has been paid at the state and local levels,” says Painter. “There is great variety in state and local ethics laws, and none are nearly rigorous enough. The principles we have outlined are intended to provide guidance for state and local governments that may be developing ethical standards for the first time or whose standards need strengthening.”
This is the ALI’s first project on the topic. In accordance with ALI guidelines, Briffault and Painter assembled a group of advisors to provide subject matter expertise. “ALI projects have a very defined process that requires research and debate from a diverse group of advisors,” says Briffault. “With this project, we had a mix of nearly 30 professors, academics, judges, and practitioners who provided the careful research and analysis this topic deserves.”
Briffault proposed the topic of ethics to the ALI after observing the lack of standards at the state and local levels. “Ethics is critical for public trust and confidence, and it long has been a bipartisan issue,” he says. “We should be considering at all levels of government if employees and officials are doing the right thing. But with this project, we wanted to define principles in the language of ethics, not crime. In other words, what is proper, what is improper? What are the standards needed to assure that public officials act in the public interest?”
Painter was Briffault’s choice for associate reporter. “I thought we would be a good balance,” says Briffault. “Most of my work is in state and local government, and Richard’s is at the federal level.” Painter was associate counsel to President George W. Bush, serving as the chief ethics lawyer for the president from 2005-2007.
Briffault and Painter say the greatest challenge in writing Principles of the Law, Government Ethics was getting the level of detail right. “This was a principles project, not a restatement of best practices,” says Briffault. “We were creating a model, not statute or code. It took some time to get the level of generality and specificity right.”
They landed on a framework that names a general principle, provides some specific rules to implement the principle, and offers commentary and examples of how the rules might work. For example, a general principle is that a public servant should not use public office for private gain. The specific rules and examples then articulate guidelines, such as public servants should not acquire interests in an area they are likely to regulate or participate in matters that would have a particular impact on them or relatives. “It’s halfway to code,” says Briffault. “We don’t describe exact numbers or language so a state or local government can’t just cut and paste. Rather, these principles offer them the framework to develop standards that work for their specific location and situation.”
Painter notes that the principles also address differences in levels of government. “Federal ethics law prohibits members of Congress from having day jobs,” he says. “But members of state legislatures almost always have an additional day job, and many of those jobs are as lawyers, lobbyists, or consultants, where conflicts of interest can easily arise. In addition, at the federal level, members of Congress must disclose their investments, but at the state and local level they often don’t, so the public doesn’t know how personal investments may be impacting voting. It’s clear that the rules are insufficient.”
The topics covered in the ALI principles address the provision of benefits by outsiders to public servants; financial conflicts of interest and issues arising from the outside activities of public servants; the election-related activities of public servants; the problems that arise when individuals leave public service for private employment or enter public service from the private sector; and disclosure’s role in detecting and deterring conflicts of interest, facilitating enforcement of ethics rules, and promoting public confidence in government.
“We hope that state and local governments will take these principles seriously,” says Painter. “Loose rules cost taxpayers hundreds of thousands of dollars every year. City, county, and state leaders can look to these ALI principles to prevent issues and build public trust. We have built in flexibility so they can be customized. There are plenty of options in this toolkit for anyone looking to improve ethics.”