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author photo - Duane Davidson

Essential in Government

Duane Davidson
League Associate Counsel

Still fresh in our minds are the pictures of the 11 local government officials in New Jersey recently arrested in a sting operation conducted by the FBI and the U.S. Attorney's Office. Although the U.S. Attorney has promised more arrests of local officials in the near future, the arrests of these 11 are enough to cause one to reflect sadly upon the many facets of cost which accompany the alleged conduct.

There is incalculable tragic cost to the families and friends of those arrested. A dear price is also paid by the local government entities which were served, or were to have been served, by those arrested. However, in a larger sense, the heaviest price is being paid by all of us who operate within local government. A disenchanted public may, in disgust, paint all in local government, perhaps government on all levels, with the same brush of corruption. A local newspaper, the weekend after the arrests, had numerous letters to the Editor on the subject. One cynical, cutting sentence among them reads:

"If the public does not believe that somewhere in their hometown someone is ripping them off or planning to rip them off, then they are not very smart."1

[The] loss of public confidence is the
tremendous price paid for illegal or
unethical conduct.

Unfortunately, this attitude is probably widely held, with the result that those working honestly in local government take on the stench of corruption. This loss of public confidence is the tremendous price paid for illegal or unethical conduct.

Steps can and must be taken to begin restoration of public confidence. If proven, the conduct of the 11 officials is clearly illegal. However, there is a more subtle disease which precedes this extreme -- the disease of unethical, although not necessarily illegal, conduct. The contemplation of unethical conduct comes first, be it in one's own mind or expressed in the sanctity of a governing body's executive session. Like the office romance, unethical and then illegal conduct, begins with flirting - flirting with the idea, contemplating it and all too often failing to accurately calculate the consequences.

Indeed, we are all human and only those who are not candid among us would disavow ever entertaining the thoughts of unethical or illegal conduct; but, that is the very point at which the idea must be extinguished. As to these types of thoughts, it has been said that, being human, we cannot keep these thoughts, like birds coming to roost in the trees, from roosting in our minds, but we definitely can quickly shake the tree limbs so that the birds move on and do not build a nest. Like the after hours drink with the very attractive coworker, these thoughts may seem harmless and, in some ways, exciting. We are confident that we will never let them become inappropriate action. The failure lies in allowing this type of cancer to take hold in the first place. As the disease progresses from the unethical to the illegal, the real price for the conduct is exacted.

A second safeguard when contemplating any such conduct is to step back and view the situation as "Joe average citizen" would. Remember, depending upon when one began serving in local government, there were different unwritten rules of conduct of what was considered acceptable. Over the years, thankfully, those rules have been changing for the better for all the reasons identified in the article entitled "Ethics in Local Government" by William Cox2. Keeping track of the evolution of ethics can be complex or simple. The simple way is to contemplate the action by pretending to hold the proposed course of action up to the light of constituent scrutiny. Would you be willing to take a page ad in the local newspaper describing for the public what it is you propose to do? If not, do not do it. Simplistic and naive -- perhaps, but which of the 11 who have been arrested, if convicted, would not in an instant retract the history of conduct which led to the arrest?

Third, assistance can come from the Legislature. Again, in his article "Ethics in Local Government,"3 William Cox pressed for a legislatively enacted, clear set of ethical standards for public officials, and the establishment of a method of enforcement of such standards. Such a clearly defined code of conduct would create a bright line in order to quickly identify and highlight conduct which is beginning to progress down the wrong path. However, in addition to that suggested legislation, sorely needed is uniform, statewide, meaningful legislation applicable to local government to end not only the reality, but also the perception of local no-bid contracts being awarded, in part, as a quid pro quo for campaign contributions.

Although local control is something all of us
in local government seek to preserve, as to
regulating what has become known
as "Pay to Play," one set of rules, statewide, is needed.

Many local governments have done an admirable job of enacting local legislation in an attempt to curb or prevent this practice; however, differences, both obvious and subtle, between these different local ordinances have created an almost indiscernible regulatory tangle for professionals serving several local governments, each with its own set of regulations. Although local control is something all of us in local government seek to preserve, as to regulating what has become known as "Pay to Play," one set of rules, statewide, is needed. Such legislation will facilitate understanding by those regulated and most important of all, it may be one more step toward restoring public confidence in local officials, the majority of whom are hardworking, selfless, honest servants of the people.

1 Asbury Park Press, February 27, 2005, page C3

2 New Jersey Municipalities, May, 2004 at 46.

Duane Davidson is the winner of the Second Annual Michael A. Pane Ethics in Local Government Award. The award is presented annually to a municipal attorney who meets the highest standard of excellence and ethics. Mr. Davidson was admitted as an attorney in 1974. For the past 30 years his practice has concentrated on representing local governmental boards and governing bodies. He served as Municipal Prosecutor for 26 years. He currently represents the governing bodies of Freehold Township (22 years), Millstone Township (19 years) and Holmdel Township (12 years).


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