The Oath of Office: Ethics, Liability, and Best Practices

by Tami Tanoue, CIRSA General Counsel/Claims Manager

A typical oath of office might go as follows:

“I solemnly swear or affirm that I will support the Constitution and laws of the United States of America and the State of Colorado, [this Charter,] and the ordinances and other laws of the City/Town, and that I will faithfully perform the duties of the office upon which I am about to enter.”

With the passage of time since you were elected, does your oath have continuing meaning as an ethical commitment? This article examines the oath as a commitment to best practices in carrying out your responsibilities, and as a path to avoiding liability. We’ll focus on four key areas: allocation of responsibilities, transparency in meetings, quasi-judicial rules of engagement, and personal conduct.

Honoring the Allocation of Responsibilities
As in other levels of government, municipal powers and responsibilities are typically allocated among the governing body, judge, staff, and possibly others, according to charter or statutory requirements. Thus, for instance, the governing body is responsible for all legislation, the municipal judge is responsible for determining ordinance violations, and the staff  is responsible for administrative matters.

To the extent that charter or statutory provisions set forth a clear allocation of responsibilities, respecting that allocation is part of an elected official’s oath. Inappropriate involvement in administrative matters, then, could be a violation of your oath.

Personnel matters are among those in which inappropriate involvement tends to occur. As an individual elected official, if you are asked by an employee who’s not one of your direct reports to become involved in an employment issue, or if you take the initiative to become involved, that could be a red flag in terms of your oath to respect the allocation of responsibilities.

From a best practices standpoint, inappropriate involvement in personnel matters can effectively destroy the chain of command. While most municipal offices are not operated according to a military-style chain of command, some version of a chain of command is critical for effective functioning no matter how large, small, formal, or informal your operations are. Once you allow inappropriate involvement to occur, you have effectively disempowered your supervisors and managers throughout the organization, and sent the message that employees are free to disregard the chain of command.

Personnel matters are also a high-risk liability area. The more you’re personally involved, the more likely it is that your name may some day appear on the wrong end of a lawsuit! So you can see that honoring the allocation of responsibilities by staying out of most personnel matters is a means of avoiding or reducing liability.

Honoring Transparency in Meetings
In local government, transparency of the governing body in its discussions and decisions is a basic expectation of the citizenry. Citizens take great interest in the goings-on of the governing body, and are quick to notice when their transparency expectations are not met. A perception that governing body members are conducting discussions secretly, that executive sessions are being held for improper purposes, or that decisions are being made in “smoke-filled back rooms,” can quickly erode trust and confidence in government.

Transparency in meetings means that governing body meetings are open to the public and held only after proper public notice, that executive sessions are strictly limited to the purposes authorized by law, and that discussions of public issues take place in a meeting setting rather than by email or in hidden locations. Is this part of your oath? Most certainly! The statewide open meetings law applies to all local public bodies, including city councils and boards of trustees. If you’re a home rule municipality, there may be charter provisions concerning transparency as well.

Is honoring transparency in governing body meetings a best practice? It is, if you want to maintain the public’s confidence and trust! Making a commitment to transparency can also help ensure that your municipality doesn’t become Exhibit A in an effort to make draconian changes to the open meetings law. You surely don’t want to be held up as a bad example in the legislature. It’s happened.

Is honoring transparency a liability-reducing suggestion? At CIRSA, we’ve seen our members become involved in litigation over their meeting practices. Based on our experience, the answer to that question is yes. There are watchdogs out there scrutinizing you, and they will pounce on you with a lawsuit if your meetings practices don’t pass muster under the law. CIRSA has open meetings/executive session defense cost coverage for member governing bodies, but by honoring the letter and spirit of the open meetings laws, you can avoid costly and potentially embarrassing litigation.

Honoring the Quasi-Judicial Rules of Engagement
Governing body activities can be pigeonholed broadly into two areas: legislation and quasi-judicial decision-making. The rules of engagement differ depending on which pigeonhole fits. For legislative matters, the rules of engagement are free-wheeling. Think of the legislature when it’s in session, and the lobbying that goes on there. But for quasi-judicial matters, the rules of engagement have a basis in constitutional due process requirements: the right to a fair hearing before a neutral decision maker when individual property rights are at stake.

No doubt your municipal attorney has discussed the quasi-judicial rules of engagement with you. The attorney is trying to protect the integrity of the hearing process, the defensibility of the outcome, and your prerogative to participate as a decision-maker. These rules of engagement include:

• You will follow the applicable legal criteria, and apply those criteria to the evidence you hear at the hearing, to arrive at your decision.

• You will refrain from “ex parte” or “outside the hearing” contacts regarding a pending quasi-judicial matter.

• You will not participate in decision-making in a quasi-judicial matter in which you have a conflict of interest.

These rules flow from constitutional due process requirements, so they are most certainly a part of your oath. Following these rules is also a way to avoid or reduce liability. In quasi-judicial matters, the process by which you arrive at a decision is at least as important as the substance of the decision itself. If you’ve ensured that the process is letter-perfect, then you have eliminated a huge portion of the possible quarrels that could turn into a claim. And it’s a best practice, because following the rules of engagement will enhance the reality and the perception that all who come before you with quasi-judicial matters will be treated fairly.

Honoring Standards of Personal Conduct
The way you conduct yourself in relation to other members of the body, staff, and the community, greatly impacts your effectiveness as an elected official. No matter where you are on the political spectrum, you can probably agree that politics today are infected with divisiveness and incivility. Municipal government being non-partisan, its elected officials should, at least in theory, be able to rise above the nastiness of partisan politics!

With respect to the governing body, do all members understand that governance is a team activity? An individual elected official does not have the power to accomplish anything on his or her own. Only through collaboration and consensus-building can an individual’s priority become the priority of the body.

Has the governing body been able to “gel” as a team, or are members viewing one another with a sense of distrust? Are there “outliers” on the council or board who are creating turmoil and dissension?  (See the Spring 2012 issue of Coverage Line for an article on identifying and dealing with “outliers.”) Are you lining up along the same divisions on every issue? Are you unable to disagree without being disagreeable? Perhaps some team building is in order if these things are happening.

With respect to staff, is an incoming council or board viewing staff as the “enemy”? A staff exists to carry out the goals set by the governing body. Sometimes, with the changing of the guard at the governing body level, there’s an assumption that there needs to be a changing of the guard at the staff level, too. But if this staff faithfully carried out the goals of the prior governing body, why wouldn’t you expect that they will be equally able and willing to carry out the goals of the new body?

With respect to the community, are public comment periods turning into “public inquisition” or “public argument” periods? Is “staff bashing” or “elected official bashing” happening at meetings? Perhaps another look at your rules of order, and your approach to meetings, would be appropriate. Certainly the public has every right to appear at meetings and make complaints. It’s a sign of faith in local government that people care enough to complain! But the manner in which those complaints are made, and the manner in which you respond, can mean the difference between a constructive, productive exchange or a nasty, embarrassing, unproductive, or morale-crushing attack.

Is the observance of personal conduct standards part of your oath? At least arguably, yes. After all, when lawyers take their oath of office, they commit to respectful conduct towards one another and to the judiciary. It doesn’t seem a far stretch to impute a similar commitment to your oath.

Is it a best practice to observe personal conduct standards? It certainly seems so. Maintaining harmonious and productive working relationships with your fellow elected officials, staff, and the public can only increase your effectiveness. And keep in mind that harmony doesn’t mean you all have to agree all the time. Indeed, healthy discussion, debate, and disagreement are the engine for understanding issues and solving problems. But the idea of disagreeing without being disagreeable is important to keep in mind.

Does the observance of personal conduct standards help with liability reduction? We think so. In CIRSA’s experience, turmoil at the top levels of the municipality means turmoil throughout the organization. After all, you-know-what rolls downhill. Over and over, we’ve seen that disharmony and dysfunction at the top means claims throughout the organization.

Conclusion
Honoring your oath of office isn’t just something you do when your raise your right hand at the beginning of your term. You can look at just about any arena in which you operate as an elected official, and ask yourself, “What did I commit to do when I took my oath?” By asking and answering this question, you can stay on the path of best practices, and avoid or reduce personal liability.

Editor’s note: The foregoing article is excerpted from a presentation by Tami Tanoue at the June, 2012 Colorado Municipal League Annual Conference. CIRSA member governing bodies interested in a presentation of this topic at a governing body meeting or study session are welcome to contact Tami at CIRSA.