Tuesday, September 15, 2009

City-County Ethics Code - Putting The Fox In Charge Of The Henhouse

I had the opportunity to watch the City-County Ethics Commission meeting held yesterday which is posted on the city's website.

The meeting consisted of the head of the Office of Corporation Counsel, Chris Cotterill, instructing the Commission on the application of the new Ethics Code. I have complained about Cotterill's appointment before. He had only five years legal experience when appointed to the head of this very important city agency, and had zero litigation experience. (Yet that didn't stop him from instructing the Commission on "pleading standards" and discussing litigation.) Although he mentions in the meeting having worked in the prosecutor's office, as far as I can tell that experience must have been as an intern while in law school. Cotterill received his position because he was a Barnes & Thornburg attorney and Joe Loftus, a partner at Barnes & Thornburg who is also on the city's payroll, was the person Indianapolis Mayor Ballard allowed to staff City Legal. I would assert that Loftus gave Cotterill the position not because of his experience, but because of his inexperience. Inexperienced attorneys are easier to manipulate and control.

While the revisions in the Ethics Code are an improvement, what is troubling is the complaint process. Ethics complaints have to be filed with the Office of Corporation Counsel, which acts as a "filter" for the ethics commission. The problem with that structure is that attorneys are trained not to be objective adjudicators of the facts, but rather advocates for clients. Many ethics violations could also involve legal violations which mean lawsuits against city employees or agencies. Does anyone believe the Office of Corporation Counsel is going to aggressively and fairly pursue ethics complaints when the information gathered and the conclusions reached could lead to legal action against their clients, i.e. city agencies or city employees?

The problem with this setup is evidenced by a comparable situation in government. Years ago, the Indiana legislature passed a notice of tort claim law that required individuals, prior to filing lawsuit against government, to notify government. The idea behind the law was that it would allow government to reach quick resolutions of cases, pre-litigation, and save the taxpayer money. But instead of channelling the notices to a more objective, judicial type body, the notices get funnelled to attorneys for the government who are advocates for their government clients that the individuals are threatening to sue. I don't know that I have ever seen the Indiana Attorney General's Office conduct an actual investigation of a tort claim and I certainly have never seen the AG do anything but deny liability. Same thing with Indianapolis . The Office of Corporation Counsel always denies liability with respect to tort claims notices.

With regard to the ethics code, you have the additional problem that the Office of Corporation Counsel is part of the problem. Is there any doubt that the Barnes & Thornburg dominated Office of Corporation Counsel would ignore ethics violations such as conflicts of interest that involve clients or attorneys of the law firm? Certainly there doesn't seem to be any effort on the part of the Office of Corporation Counsel to root out the severe conflicts of interest which exist in the Ballard administration.

The Ethics Code revisions are a good idea. Putting the Office of Corporation Counsel in charge of being the gatekeeper to the Ethics Commission, however, is a little like putting the fox in charge of the hen house. No good can come of it.

See also:

Thursday, September 25, 2008, Recommendation to Indiana General Assembly - Drastically Modify or Repeal Notice of Tort Claim Requirement


M Theory said...

Gosh, I wonder if Libertarians were in control if these unjust practices would continue?

Paul, I admire your passion for your party which continues to abuse our citizens, but the Republican Party cannot and will not be reformed.

It is not principled, nor will it ever be.

Paul K. Ogden said...


The Libertarians are usually more principled, I'll grant you that. But they don't get into the winnner's circle where they can set policy. It doesn't do any good if you're constantly locked out of the decision making process.