By Steven Miller, Partner, Hanson Bridgett LLP
Imagine you are the general manager of a community services district. At 9:00 p.m. one evening, you receive an anonymous email, cc’d to the local newspaper and to all board members, that accuses one board member of improperly using district facilities for her personal gain. In short order, you receive phone calls from the board president and the accused board member—who, by the way, are usually on different sides of most issues before the district. You also receive a request under the California Public Records Act from the local newspaper for all emails and other written documents, including on personal devices, that relate to the subject underlying the anonymous email complaint.
Few issues are as sensitive and disruptive as a complaint lodged against a sitting board member. But complaints and their resolution are usually shrouded in secrecy, without the transparency often necessary to learn any meaningful lessons that could help a district chart a course in the aftermath of a complaint. An ethics complaint may raise legal challenges for a district. But even if a complaint does not allege significant fraud or other criminal behavior, a complaint alleging board member ethical misconduct presents political and practical challenges that, at a minimum, may cause an enormous distraction from the administration of the district and its important mission.
This short article suggests a framework for how to address a situation like this one. While facts and circumstances of each situation are unique, this framework is designed to help guide you through this process. Even though I am a lawyer, I suggest an approach that is not necessarily guided only by a traditional legal risk assessment. I suggest that the crucial question to ask yourself at the outset of the process—and then to check in again and again—is how to define success. What is the best or desired outcome from this complaint? This is often not an easy question to answer.
First, of course, you must protect the district legally. A successful outcome must include managing such risk to the district. But from my nearly 20 years of ethics practice, the most common risks I see from situations like this one are not strictly legal. Rather, an often-ignored risk is to a district’s culture. A mishandled ethics complaint could foster a culture of secrecy and mistrust, not only among staff, but critically among the public. If not handled properly, an ethics complaint like this one could lead to increased Public Records Act requests and increased hostility at public meetings. This can create a vicious cycle which only leads to more and more tensions between the district and the public and between the board and staff, more dissension among the board, and less and less staff cohesion. What once might have been a model of a well-run district now demonstrates with increasing frequency examples of dysfunctional governance. Once the public’s trust is lost, it is very difficult to regain.
Avoiding this pitfall is not always easy. District leaders should be guided by transparency and a well-tuned ethical compass. Some practice pointers from my experience:
Closed session discussions should not be the default response. Even when allowed by the Brown Act (and a closed session may not be an option for board discussions of many ethics complaints), holding difficult conversations in public will promote a culture of transparency and may prevent public charges of cover-ups and conspiracy.
Err on the side of independence. When a respondent to an ethics complaint is a board member, it may be very difficult to conduct an internal investigation that will have credibility with the public. Engaging an outside investigator is usually a prudent course of action. Consider making the investigator’s written report public.
Support your staff. Pay attention to the impacts of a complaint on your staff. They may need your protection from angry members of the public and even from intrusive board members.
Use this as an opportunity to refresh district policies. Do you have a Code of Conduct for board members? When was it last updated? Does it include a section on process that will help navigate the response to a complaint? In particular, does it describe options for a board that wants to enforce a finding that a board member has violated the Code of Conduct?
Use this as an opportunity to improve your district’s ethical hygiene. I am all in favor of the required AB 1234 training. But training programs specific to your district and your board members may also be helpful. Consider including a standing five minute “Good Governance Hot Topics” item on board meeting agendas to help impart useful information and promote and restore the district’s ethical reputation. Develop a curriculum of bespoke training that works for your board and your district.
Steven Miller is the independent ethics investigator/evaluator for the City of Sacramento Ethics Commission and the City of San Jose Board of Fair Campaign and Political Practices (formerly Ethics Commission). He is general counsel to two special districts and advises on ethics, governance, contracts and procurement, and regulatory matters throughout the State. He is a partner with the law firm Hanson Bridgett LLP. You can reach Steven at smiller@hansonbridgett.com.