International Municipal Lawyers Association - Local Government Blog

Court Dismisses Challenge to Local Ethics Board Procedures | March 11, 2009

Posted By: Professor Patricia E. Salkin 

It is common for states that authorize or require the adoption of local ethics laws to also provide authorization for the establishment of local ethics boards or commissions.  These boards or commissions may possess a wide range of powers, typically detailed by the municipality in the legislation creating the body.  Sometimes the boards or commissions are given authority to investigate allegations of ethical violations (and sometimes this rests with the local district attorney offices).  Additionally, boards may be vested with authority to render advisory opinions that may or may not have precedential effect.  What follows is a summary of an unreported Connecticut case where a member of the public brought a pro se lawsuit seeking changes in the procedures of a local ethics commission.

A resident of the Town challenged the procedures of the local ethics commission.  Specifically, the plaintiff argued that: 1) persons not subject to the local ethics code be permitted to request advisory opinions (the Town’s procedure only allows the Commission to accept requests from people subject to the Code); 2) allegations of unethical conduct be made by means of a formal complaint (the Town’s procedure provides for ethics allegations to made via an inquiry, and in the event the Commission feels there is probable cause that a violation has occurred then the Commission initiates a complaint and investigates it); and 3) that all allegations of unethical conduct be resolved by probable cause determinations (the Commission objects to the qualifier of “all” allegations since they do not have jurisdiction over people not covered by the Code). These challenges were contained in the Plaintiff’s third attempt to seek changes in the procedures of the ethics commission.

The Plaintiff alleged that the Ethics Commission’s refusal to render advisory opinions to persons not subject to the Code violated equal protection.  The Court concluded that the Plaintiff failed to make a valid equal protection claim since the ethics code is only applicable to town officials, and not the general public.  Therefore, there were no alleged circumstances in which the Plaintiff was similarly situated to persons subject to the ethics code.  Although the Plaintiff’s complaint also alleged that the Ethics Commission treated one town official differently from two other town officials, the Court concluded that the Plaintiff did not have standing to assert the equal protection rights of a town official.

The Court also found nothing in state statute to require that local ethics commissions must use complaints rather than inquiries, and that the procedure used in the Town did not violate the Plaintiff’s First Amendment right to petition the government for redress of grievances. Further, the Court found nothing in state statute to require that local ethics commissions render advisory opinions to members of the general public. Lastly, the Court noted that ethics commissions typically have absolute discretion in selecting which complaints to prosecute.

Emerick v. Town of Glastonbury, 2008 WL 1971250 (Conn. Super. Ct. 4/18/2008).

For an a good article on empowering county ethics boards click here

To read about vesting local ethics boards with enforcement authority click here

For tips on drafting ethics opinions for local ethics boards click here

See what the non-profit City Ethics has to say about ethics boards here

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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