Our county Ethics Board continues to have a penchant for being asked to rule on vexing and troublesome matters.
At its November 12th meeting the board’s agenda consisted principally of three requests for advisory opinions from the board as to whether there is a violation of the Ethics Code for the Liquor Control Commission in its official capacity to hear a liquor-license application from a party who is suing the county, the commission, its members and the director of the county Department of Liquor Control. The applicant’s suit arose from the denial by the commission after a “prolonged” hearing of the liquor-license application for a sports bar. Thereafter the applicant filed an appeal in the Fifth Circuit. The court issued a judgment in March 2009 which did not rule on the merits but found that the commission had failed to comply with certain procedural requirements and, in an expanded follow-on case by the same applicant which also named individual commission members, the court ordered the commission to place the application on its agenda not later than October 2010. At its October 7, 2010 meeting the commission decided that instead of processing the application it would seek the Ethics Board advisory opinion.
None of the requests made contained any reference to any provision of the Ethics Code which should be considered by the board.
One of the requests to the Ethics Board was written by a deputy county attorney advising the liquor commission. Public testimony given to the Ethics Board had raised the issue whether the legal adviser had concluded whether any Ethics Code violation would occur if the application was processed under the circumstances. He was asked by an Ethics Board member if he had an opinion as to whether processing the application by the liquor commission while the applicant’s lawsuit against the commission, its members and its director was pending would result in a violation of the Ethics Code. He denied that he had offered any such opinion. Yet another deputy offered an opinion to the Ethics Board at its meeting finding a violation.
After some discussion the board determined by a four to two vote that for the liquor commission to proceed on the application in light of the pending litigation including the commission members would be a violation of Section 20.04 B of the charter. The chair and the vice-chair of the board dissented in this vote.
The Ethics Board decision used poor legal analysis, was poor policy and was insulting to the Circuit Court.
Charter Section 20.04 B was amended by the voters in the 2008 election. As applicable to the situation here involved, in substance, the section as amended provides that if a commission member “possesses or acquires” an interest in conflict with his duties, in a matter pending before him, he shall make full disclosure of the conflict and shall not participate in the matter.
The ordinary meaning that the term “interest” connotes an asset held by a party is enforced by the reference to “possesses or acquires.” The position that liquor board members might possibly be exposed to if the applicant’s suit were successful would be a liability for costs and damages. Liabilities are incurred, not possessed or acquired. In addition, it is virtually always the case that where employees or representatives of a governmental body are sued together with the body it undertakes their defense and they are indemnified against any financial consequences. While the indemnity here has not been publicly disclosed, it is inferred from the fact that the commission, its members and its director are all represented by the County Attorney’s office. It is difficult to conclude that the charter section is aptly used in the present context.
The decision is also poor policy. The teaching provided by the decision is that if a pending litigation also names a majority of the members of a county commission or body, including the council, that such entity will be unable to proceed to consider the matter underlying the lawsuit. For example, it appears that a party concerned about a development being sought before the Planning Commission could by a lawsuit naming commission members stop its consideration of the development. No lawsuit should be permitted without court approval to interrupt or suspend any governmental proceeding.
The decision is an affront to the Fifth Circuit Court order. It seems clear that when the court included in its order a requirement that the matter of the application for a license to be restored to the Liquor Commission agenda it intended that the commission would process the application applying the procedural corrections that were specified in the order. Instead in a manipulation orchestrated by the lawyer for the county and the various individuals, the liquor commission was induced to pursue a course that under the Ethics Board decision was an avoidance of the court order.
The Ethics Board proceedings demonstrate a disturbing disarray in the County Attorney’s office. Although its opinion has not been publicly released, it appears that the County Attorney’s office opined to the Ethics Board this month that the Ethics Code would be violated by the liquor commission processing the application involved in the lawsuit, but the office with the same facts applicable apparently was not able to offer comparable advice to the liquor commission at its October meeting? Does not this structural deficiency dictate that county agencies should be able, when potential conflicts exist, to obtain independent counsel?
Isn’t it depressing to watch our county government bumble along from gaffe to gaffe?
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
