.jpg)
Lexington City Council continued its discussion of possible edits to the language of the city’s code of ethics, particularly of the section regarding conflicts of interest, at a work session last Thursday. Council also considered new language for that section of the code of ethics provided by interim city attorney Jeremy Carroll.
The code section in question currently reads, in part, “In order to assure their independence and impartiality on behalf of the common good, members shall not use their official positions to influence government decisions in which they have a material financial interest or where they have an organizational responsibility or personal relationship that may give the appearance of a conflict of interest or where they have a conflict of interest under Section 2.2-3101 of the 1950 Code of Virginia, as amended.”
The wording regarding “the appearance of a conflict of interest” was the primary focus of the discussion when the issue was first raised by Councilwoman Leslie Straughan in January. The language, she felt, was too broad and not clearly defined, and thus she proposed removing it from the code or, barring that, more clearly defining the parameters of that section.
At the Feb. 2 work session, members of Council were presented with a resolution to adopt an amended code of ethics, with the most substantial change being to the section dealing with conflict of interests.
The new language in the section reads, in part, “So as to avoid inappropriate conflicts, Members shall refrain from prohibited and unlawful conduct under Article 2 of the State and Local Government Conflict of Interests Act (“Act”); shall refrain from prohibited conduct relating to contracts under Article 3 of the Act; and shall refrain from prohibited conduct relating to transactions under Article 4 of the Act.”
The new code language aligns the city’s conflict of interests standards with the state code, and strives to more clearly define when members of Council – or members of the city’s other boards and commissions who follow the same code of ethics – should recuse themselves.
If any members are unsure of whether their connection to a business or institution would constitute a conflict of interest, the code gives three avenues through which they can seek an opinion on the matter: through the city attorney, the commonwealth’s attorney for the city of Lexington, and/or the Virginia Conflict of Interest and Ethics Advisory Council. Members who do not have a legal conflict under the state code may still recuse themselves from the consideration of an issue if they feel that they should not participate due to their connection with the issue or parties involved.
The removal of the broad language, Straughan said at the work session, allows for the decision to not participate to be made by the individual members rather than by the council or commission as a whole.
“I think that’s a better way, a person asking Council’s permission rather than Council telling you, because we have gotten into situations where people will call around and try to get a group together and say, ‘You need to recuse yourself,’” she said. “You shouldn’t be bullied like that into a situation like that.”
Newly elected Councilman Nicholas Betts, who spoke in favor of editing the language at the Jan. 5 work session, also expressed support for the new language of that section of the code of ethics, saying that the proposed edits “increase clarity and reduce ambiguity” in the code.
“What I think is problematic is when you have a loose word,” he said. “I think it opens up possibility of litigation. The reason you have laws and codes is to let individuals and organizations know what behavior is prohibited and not prohibited, so I think the clearer we can be [with the language], the better off we’ll be in the future.”
Councilmen David Sigler and Charles Aligood, who both advocated for not changing the language at the January work session, expressed their support for keeping the language in the code, though Sigler acknowledged that the ambiguity of the current code can create concerns and confusion.
“I still believe that the current code of ethics allows us to participate if we wish, but I do see why it would give heartburn to the ARB, the planning commission, to a lot of our boards and commissions and city council. It doesn’t make sense. You can’t find an attorney who would say ‘I think everyone should have a code like this ...’ It’s actually the contrary, is what I’m learning. It’s actually like, ‘What you have is not that good. It doesn’t make sense.’ And if there’s anything that I’ve learned in my years on [City Council] with ordinances and policies, it’s that we try to do what makes sense. I really believe in that.
“I think I might be fine with leaving it, it might save us from taking a few shots, but it just doesn’t make sense,” he added. “It’s actually a poor code of ethics because no one knows what it means … We all know what it means, but it might not mean the same thing to me as it does to everyone else. And I have a hard time with that.”
Discussion was also had about how the language about appearance of conflict was added to the code, which was last updated in 2015. Sigler noted that the code was amended following changes to the state code of ethics after former Gov. Bob McDonnell and his wife were convicted on corruption charges in September of 2014, and that the language that was adopted was proposed by then-city attorney Larry Mann.
“It’s one of those things that sounded harmless, and I’m sure when Council adopted it, they didn’t think much about it because it sounded harmless, because, as David said, everyone knows what it means, but everyone has a different interpretation of what it means,” Straughan commented.
Council will take time to review the proposed changes to the code of ethics and will
