A key selling point of Luzerne County’s home rule charter was the creation of an ethics code and an ethics commission to police it, but the system that resulted has problems, according to a report the commission recently submitted to County Council. This report, to be discussed at next week’s County Council meeting, highlights three “major” concerns:
EXPECTATIONS: The commission is expected to perform as a judicial body but does not have the funds or resources of a judicial system.
The commission has no way to provide complaint filers with legal representation if they don’t have the funds or impetus to retain an attorney. An “ordinary” citizen who brings a complaint before the commission “may quickly disappear” if the subject of the complaint has the “financial power” to hire an attorney.
“Conceived this way, procedural objections may make it impossible to ever respond to the substance of the complaint, thereby the proposed remedy is impossible,” the report says.
CONVOLUTED PRACTICE: A “convoluted practice” has resulted from the commission’s requirement to maintain confidentiality under the ethics code while honoring Right-to-Know provisions of the state Sunshine Act. The commission privately deliberates and publicly votes on its decisions without revealing the “substance of the violation.” This lack of detail has been “frustrating” for some citizens and commission members.
The confidentiality requirement also must be clarified to determine “whose identity is to be shielded from whom.” The report says filers could face retaliation if they file a complaint against a superior, while the subjects of complaints could be harmed if their identities are revealed and they are found innocent.
CODE REQUIREMENTS: The code requires all covered people to sign a document agreeing to abide by its provisions, but 47 percent did not sign this acknowledgement.
Concerns also have been raised by some employees and commission members about the code wording and legal ramifications.
For example, the report includes comments from Assistant District Attorney Jim McMonagle in which he points to chapter 102 of the code, labeled “definitions and construction.” This one-sentence section says: “The definitions and constructions operative in the ethics code are the same as those operative in the home rule charter.”
The code should cite specific charter references so people know “exactly where to look for meanings of words and phrases,” he said.
He also referred to another code section that says, “In matters of ethical dilemmas and conduct not covered under this code, all covered persons are expected always to reflect on and serve what they believe to be in the public interest and not to serve personal interests and gain.”
That section creates a “very subjective” and “very vague amorphous standard” that could be “second-guessed in the future,” McMonagle said.
“If it is questioned, by what standard is it reviewed and who gets to decide that my decision, made in the moment, was not appropriate under the code?” McMonagle wrote.
He also questioned the code’s procedure processing complaints. The subjects of complaints are entitled to hearings before the commission after the commission investigates and issues a decision. The commission “seems to serve as prosecutor, jury and judge,” he said.
“Does anyone believe that the ACE Commission won’t find that a respondent violated the code, if it had already found by a preponderance of evidence that a violation occurred?” he wrote.
Council adopted the code, and the commission has been working with council members on proposed revisions.
The county district attorney, controller, manager and two council-appointed citizens serve on the ethics commission.