Bringing back decorum and civility in the public sector
Shelline Bennett is a partner with the law firm of Liebert Cassidy Whitmore; she can be reached at firstname.lastname@example.org.
Media coverage of controversial national, state, and local events has placed a spotlight on the need for civility and decorum at all levels of government. Ensuring local elected officials engage in ethical behavior is critical to instilling trust. However, regardless of whether they are seasoned or newly elected, city officials’ behavior can impact their ability to lead and negatively affect their cities. Examples include:
- A council member receives a complaint from an employee alleging harassment against a supervisor, and the council member promises the employee she will make sure that the “harassing” supervisor is dealt with handily.
- A council member involves herself directly in the discipline of an employee by requesting copies of the employee’s personnel file to review.
- The city is ready to present its last, best, and final proposal at the bargaining table, and the vice mayor meets individually with the union representative and advises he can get more for the group than the 2.5% the city council authorized.
- A council member is increasingly using social media, especially the “like” function. She is citing AB 992 that allows her to communicate on an internet-based social media platform without violating the Brown Act. The problem is the “like” involves something another council member posted on a matter within the council’s jurisdiction.
- At the dais, a council member has started regularly elevating his voice and is often described as yelling, sometimes with a bit of profanity.
City councils set the tone, tenor, and behavior that agencies look to emulate. Leadership and ethics go hand in hand and require honesty and personal integrity. The age-old adage is true — people follow willingly, with greater productivity, if their leaders are individuals they respect. What can elected officials and senior city management do to help set high standards for employees, elected officials, and the city itself?
First Step: City management can help educate and remind council members about their roles. When it comes to personnel issues, it is generally a best practice for council members to take a hands-off approach and refer such issues to city management. Typically, by ordinance, resolution, municipal code, charter, or employment agreement, the head of the agency — the city manager — is the designated official charged with overseeing employees. The governing body generally has no right to manage or direct employees in their duties; that task falls to the agency head and the employees’ supervisors. Personnel matters within a city council’s jurisdiction are limited (i.e., city manager/city attorney), and a council can only act at a duly convened meeting, by a majority vote. If city council members act individually, outside of the meeting, they potentially expose the city and themselves to legal liabilities and risk losing the legislative shield of immunity.
In addition to creating legal liability, what an elected official says in her individual capacity may be asserted as a legal admission against the agency’s interests. This means it could jeopardize the integrity of the employee appeal process and ultimately undermine the command structure and hierarchy. If a council member is communicating directly with employees/associations/unions about negotiations and bargaining proposals, issues of potential bad faith dealing could arise due to bypassing designated negotiators. This could undermine the designated lead negotiator’s authority.
Second step: City management should make sure elected officials know what is expected of them in key legal areas: harassment, discrimination, and retaliation, as well as ethics and conflicts of interest. It is important for elected officials to comply with mandated harassment and ethics trainings. AB 1661 requires harassment prevention training (two hours every two years or within six months of taking office), and AB 1234 requires ethics training (two hours every two years). Understanding these key legal concepts will help ensure that elected officials have a proper foundation for engaging in ethical and professional behavior.
Third step: Codes of conduct and ethics help elected officials navigate the vast and complex laws they are trained on and expected to comply with. Senior city management can assist elected officials by bringing new or revised codes of conduct and ethics to them for their consideration.
Inherent in such codes is a key concept — civility. By updating codes of conduct, cities can turn the spotlight on promoting and renewing agencies’ commitments to civility in the workplace and public service. Civility goes beyond the law and is more than simply good manners. It is the core of mutual respect and requires that at all times, we speak in ways that are respectful, and responsible, and avoid rude, demeaning, or bullying conduct and statements.
Codes of conduct and ethics can take various forms, including stand-alone policies or those that are encompassed within a comprehensive set of governance policies. The codes can be abbreviated, high-level documents with core concepts, or they can be detailed with specific examples.
Whatever the format, these codes should start with core values: integrity, responsibility, fairness, accountability, professionalism, decorum, respect, and appropriate and efficient use of public resources. They should also include statements about responsibilities of public office, dedicated service, and conflicts of interest.
Codes that provide specific examples can include statements such as:
- I treat my fellow officials, staff, and members of the public with patience, courtesy, and civility even when we disagree.
- While a council member is speaking, members shall not interrupt and shall not engage in or entertain private discussions.
- Members are encouraged to use a formal style, including appropriate titles, in addressing the public, staff, and each other.
- For city council meetings that occur virtually, the camera will be on throughout the meeting.
- Members shall refrain from the use of profanity, emotional outbursts, personal attacks, or any speech or conduct that tends to bring the organization into disarray. Members are to maintain a neutral tone of voice at all times.
The process for reviewing new or updated codes could include meeting with individual elected officials on what they would like to see included in the code (held in compliance with the Brown Act); forming an ad hoc committee to make recommendations to the full council; taking a draft of the code into open session for comments by the council and the public; making revisions to the code; and then bringing the document back for formal adoption.
Ultimately, there needs to be accountability for elected officials who disregard the code standards. The code should set forth the process for reporting alleged violations by an elected official. A complaint review intake procedure should be outlined and could include details such as: who determines whether an allegation warrants an investigation; who conducts the investigation; legal review of the allegations, i.e., potential First Amendment free speech and due process rights and what must go into open session; and how to handle complaints that are inappropriately used for solely political purposes.
Following completion of an investigation resulting in sustained allegations, the council may consider taking remedial action appropriate to the circumstances, which could include publicly censuring the council member. Public censure is a resolution that formally and officially admonishes an elected official and directs conformance of behavior in a manner that comports with the city code.
Once elected officials have adopted an updated code, a platform is created for the city to approach its employees and their bargaining groups to discuss updates to similar policies for management and staff. For represented employees, if the updates include counseling or discipline for violations of the policy, an obligation to meet and confer prior to implementation of the new policy is likely triggered.
There is an opportunity to lay a civil foundation at each city and renew a commitment to ethical and respectful behavior towards each other, and it starts at the top with the governing body. Once council members are educated on appropriate roles and reminded about steering clear of personnel matters, as well as what is expected of them in key legal areas, they can work more effectively to implement and adhere to a code of conduct and ethics that helps maintain the desired civility and decorum in public service.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.