Only a handful of Maine municipalities have adopted codes of ethics for their elected officials, choosing instead to rely on the ballot box to unseat people who are viewed as putting personal interests ahead of community interests or acting improperly in the conduct of municipal business.
Kennebunkport is the latest example of a town grappling with whether an ethics ordinance is even necessary beyond the guidance that state statutes and case law (court decisions) provide, combined with the public scrutiny that comes with small-town local government in Maine.
Selectmen named a committee to study the question and a year later the members of that committee decided a local ethics ordinance was not needed.
“It did not get any traction,” said Town Manager Larry Mead. “The committee thought there was already enough protection” against ethics problems in state and case law.
Meanwhile, in Bar Harbor, town councilors now operate under a new code of ethics they initially imposed on all other town committees and boards in 2004. The code took two years to develop and town meeting voters later amended the town charter so the ordinance would also apply to the governing body and not just the people they (the council) appointed to committees and work groups.
In Bangor, councilors are poised to make the city’s ethics code even stricter regarding involvement in issues affecting relatives. The ordinance, 10 pages of small type, begins by incorporating all state laws related to ethical behavior in the conduct of the public’s business.
It then sets local rules for elected and appointed officials and employees to follow relating to contracts and employment, gifts and favors, use of city property and representing third parties before city agencies, among many others.
Bangor City Manager Edward Barrett said the city’s ethics ordinance takes an additional step that has been key to protecting not just the integrity of local government, but also that of the elected official who must declare a conflict or potential conflict.
Similar to Bar Harbor’s code, the entire Bangor council, not the individual councilor, decides whether there is a conflict of interest or other valid ethical concern.
“I think the biggest thing (about the Bangor code) is that there is a set of guidelines to follow when there is an ethics question, and it protects the integrity of both the individual councilor and the overall process,” he said.
Once the entire board makes a call on an ethics question, anyone who disagrees must challenge the council, not the individual.
Bangor’s code also establishes an ethics board of five members and two alternates, appointed by council. The board is authorized only to take up ethics questions posed by the elected officials and renders only advisory opinions.
The ethics board, however, is required to file an annual report to the council and to recommend changes to the ordinance.
For example, Barrett said the city is poised to amend the code to prohibit councilors, employees and other appointed board members from having anything to do with issues involving relatives. The code presently limits the prohibition to only those people who live in the same home as the city official, Barrett said. The change will ban officials from being involved in any decision that could impact any (immediate) family member, regardless of where they live.
According to Barrett, ethical problems arise most often when a councilor does not declare a possible conflict so that the entire board can make the decision.
Bar Harbor officials, meanwhile, quickly decided against creating an ethics board. Another major difference between the two codes is that Bar Harbor’s code does not apply to municipal employees. Part of the town’s reasoning is that there are personnel policies in place to address ethical questions regarding paid staff and some (ethics) issues are covered in union contracts.
Barrett said he cannot recall a time in his nearly 20 years as manager when an ethics question involving an employee needed to be referred to the ethics board.
Historically, Maine’s local elected officials have been concerned and careful about ethical questions and eager to avoid even the appearance of an ethical lapse. That’s not always easy in the hundreds of small towns in Maine where “everybody knows everybody” and candidates for office or appointment often have deep ties to the community.
Questions about ethics law remains one of the top reasons elected officials call the Maine Municipal Association for legal guidance, according to Assistant Director of Legal Services Richard Flewelling, who has practiced municipal law for almost three decades.
“On the whole, by comparison with other states, local government in Maine is very ethical, Flewelling said. “It’s a complex subject and I think by and large ethical issues such as conflict of interest arise unintentionally or because an official is not specifically aware of the (state law).”
Flewelling thinks few Maine towns have local ethics codes to supplement state law because of the difficulty in recruiting people to serve, and because most towns are so small that unethical behavior does not go unnoticed or unaddressed by the public.
“My sense is that not only do small towns not want to do anything to discourage good people from serving, but they also understand intuitively that if an elected official breaks those ethical bounds, it’s going to be known and the voters will take that into consideration.”
Ethical questions for Maine’s locally elected officials generally fall under four broad categories: financial conflict of interest, incompatible offices, prohibited employment, and bias.
A financial conflict of interest arises when someone’s personal gain or benefit is put ahead of the community’s interests. State law specifically defines the level of personal financial gain, in 30-A MRSA, section 2605, where a local official is deemed to have a “conflict of interest”.
Most commonly, financial conflicts of interest arise in the awarding of contracts for services or goods to the municipality, Flewelling says. Also, while Maine does not have a state law governing nepotism, there is a state statute requiring elected officials to abstain from taking action on any contract that involves a relative.
An elected official does not have a legal “conflict of interest” unless he or she can benefit, or be adversely affected, financially from the decision. But Flewelling agrees with the maxim that perception of a conflict of interest by the public is as good as having a conflict and both should be equally shunned.
And because perception is often reality to the public, regardless of the truth of the matter, Flewelling advises elected officials to not only declare their real or potential conflict of interest, but to make the visible gesture of leaving the room, or at least the board table.
In both the Bar Harbor and Bangor codes, councilors are required to leave the room. Also, councilors are prohibited from representing third-party applicants before the council or other municipal boards.
“New officials, in particular, think when they have a financial conflict of interest, all they need do is refrain from voting but that they can still participate in the discussion,” Flewelling said.
However, under state law, just refraining from voting is not enough. “They must refrain from any attempt to influence,” he said.
Another frequent ethical situation involving local elected officials is their desire to hold more than one office at a time, that under state law are deemed “incompatible”. Flewelling said it’s not uncommon for a selectman to want to also serve on the school board. Another common occurrence is when a selectman wants to resign and take the job of town manager.
The answer both times is “no.”
“Having said all that, on the other hand, I think there is the potential to go too far in the other direction,” he said. “You can’t be too ethical. That doesn’t ring true. But if you stretch this (ethics) logic to its extreme extent, every selectman who is a taxpayer conceivably has a conflict of interest.”
Prohibited employment is another ethical concern for elected officials. State law prohibits elected officials (councilors or selectmen) from being hired as employees of the municipality, while serving as a councilor or selectman.
Bias is a broad category that poses ethical questions for local elected and appointed officials to contemplate. When a person is elected or appointed to a board or committee, they are charged with handling issues impartially and without predetermined conclusions. Perception of bias, whether accurate or not, is the most common reason for people charging that a “conflict of interest” exists.
The MMA provides a detailed informational packet to elected officials regarding conflict of interest and other ethics laws. This packet is available by mail or can be downloaded from the MMA website at www.memun.org.
Unlike elected officials, many public employee groups in Maine operate under a code of ethics, all with the same basic aim of protecting the integrity of the community and the profession they serve.
Police officers. Managers and clerks. Assessors. Firefighters. All have adopted professional standards of conduct and codes of ethics as a basic part of their professional organization and its beliefs.
The Maine Town and City Management Association (MTCMA) was among the first municipal associations in the nation to adopt a code of ethics. The code is based on the worldwide model adopted in 1972 by the International City/County Management Association(ICMA), although the Maine group first addressed ethics when it rewrote its bylaws in 1957 to create a procedure to investigate ethics complaints.
In 1983, the MTCMA established an ethics committee and the following year adopted the ICMA ethics code.
Twenty-five years later, managers are still constantly wrestling with ethics questions, said Jay Town Manager and MTCMA President Ruth Marden. They also are constantly looking for ways to address sensitive, ethical questions before they become a problem or embarrassment for the community, she said.
“All of us are wanting to take preventive steps to avoid problems rather than waiting to get into trouble and then trying to get ourselves out,” she said.
The MTCMA code calls for members to be dedicated “to the highest ideals of honor and integrity” in all relationships – public and personal – to earn the confidence of elected officials, employees and the public.
The code covers myriad subjects, including private employment, conflicts of interest, confidentiality, influence and conflicting roles.
Members are even required under the ethics code to show up for meetings when they’ve accepted appointment to a board, and are required to stay in a community for at least two years after accepting the job.
Marden said managers often face ethical questions and, unlike elected officials who rely mostly on state ethics laws, “it’s nice to have a reference” that provides clear guidance based on precedent and practice. Not to mention sage managers who can help others resolve issues before they become public scandals.
“Perception is 99 percent of it,” Marden said.
Sometimes, of course, guidance is not necessary. For instance, Marden said she once was offered “a little jaunt” by a company that wanted to do business for the town.
The jaunt didn’t get off the ground.