Temporary ethics panel: What we learned

Editor’s note: This column was written by Shelburne residents who recently served as a temporary town ethics committee, formed to review an ethics complaint brought to the regular Shelburne Ethics Committee but that involved one of that panel’s members. Subsequently, that committee decided it could not review the matter and asked that a replacement group be appointed specifically to consider that complaint. The temporary committee decided the complaint did not merit further review or hearing. Under ethics rules, that matter is now closed and will not be made public. This piece was drafted after the temporary committee disbanded. 

As members of the Ethics Committee Pro Tempore, we were reminded of several things.

First, citizens can – and should – get along, collaborate, and work for the betterment of the town we all love. We carefully studied complex material, including the ethics ordinance and its rules of procedure, focusing on the ordinance’s definitions of “conflict of interest” and “appearance of conflict of interest.” The key point being to prevent and if necessary sanction conduct which has resulted in an actual or apparent personal or a financial benefit to a public official or his or her family.

We reviewed the recent complaint to determine whether it stated grounds for probable cause that an ethics violation had occurred. If so, the complaint would become public with the unavoidable risk of harm to the reputation of people in our community. If there was no probable cause, the complaint would be sealed and remain confidential. As an immediate matter, we determined that the rules of procedure lacked a fundamental fairness provision to allow the target of a complaint to explain his or her position before probable cause was determined. While some situations might be clear on their face, many require more discernment which only hearing both sides of a story would allow.

Second, we concluded that the probable cause bar for an ethics complaint should not be too low, even though it is a difficult standard to define with precision. Although we are unsure where the ethics committee set the probable cause bar for the two recent complaints which have now become public, we do note that in both cases the committee did not consider anything except the materials filed by the complaining parties, and not anything from those accused. We don’t know if hearing from the accused before deciding probable cause would necessarily have changed the outcome, but at a minimum we believe all concerned would have felt the process was fairer.

Those complaints are now public since the ethics committee did find probable cause. Now, if a public hearing is scheduled the individuals in the complaints, who no doubt have endured significant impact relating to reputation and expenses for attorney fees to defend the complaints, will be subjected to greater costs and potential damage to their reputations. This may have been unavoidable, but it illustrates the care with which the ethics committee must proceed.

We believe a change in the committee’s procedural rules, like the one we adopted, is not only sensible, but necessary, for fairness and to minimize the potential for politicizing or using the power of the ethics ordinance in ways that could unfairly impact the reputation of citizens who choose to donate their time, talents, and energy as public officials. We must be vigilant not to let our ethics ordinance or its application to be used in any way for personal or political ends or we will discourage volunteerism and chill the rigorous debate essential to proper governance.

In sum, we were clear regarding the complaint we reviewed; it did not meet the bar intended by the ethics ordinance, probable cause of a violation did not exist and we ruled accordingly.

– Roger Preis, Bruce Lisman, Josh Simonds, Anne Dixon, Brian Waxler, Ann Hogan, Ritchie Berger and Ted Johnson, former members of the Shelburne Ethics Committee Pro Tempore.

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