Recently, the Oregon Secretary of State’s office audited the Oregon Government Ethics Commission (OGEC). While the audit found that the division aligned in some ways with national leading practices, it was lacking in other ways. So the Audits Division offered 14 recommendations to improve ethical culture and trust in the government, of which OGEC publicly agreed with eight.
The OGEC’s function is to hold state officials accountable and provide guidance on ethics and best practices. They are a team nominated in part by the Oregon legislature and appointed by the Governor, tasked with the goal of preventing corruption and promoting ethics guidelines amongst government employees.
According to the audit, Oregon’s official rate of corruption is the second-lowest nationally, beaten only by New Hampshire. However the audit also points out the findings of an ethics watchdog group, Coalition for Integrity, which paint the state in a different light. Because of various factors like Oregon’s lack of disclosure requirements, the Coalition for Integrity ranked Oregon number 42 out of 51 in terms of “anti-corruption measures for elected officials.”
Although government bodies like the OGEC work to keep officials accountable for their actions, the audit argues that there are several ways the Commission could be doing a more thorough job. This is where the 14 recommendations come in.
(1) The first recommendation is for the OGEC to establish statutory protections for commissioners. This recommendation stems from the fact that the Governor has nearly entire control of appointments and removals to and from the OGEC.
Although the Oregon Governor has never acted without the counsel of the Legislature, the audit argues that the current hierarchy leaves the door open for corruption. A hypothetical future Governor could dismantle the OGEC in order to avoid proceeding with an ethics investigation which may incriminate them.
(2) The second recommendation is for more specific limitations to be placed on commissioners’ political activities. Unlike the Government Ethics Committees in many other states, OGEC members are not barred from publicly endorsing, donating to, volunteering with, or running in political campaigns. This could raise an issue because of the expectation of objectivity and non-partisanship on the part of the committee.
In his response to the first two recommendations, Executive Director of the OGEC Ronald Bersin argued that they both “appear to be solutions to a problem for which the audit report provides no evidence.” He proceeds to say that the audit provided no findings which would indicate any kind of bias, interference, or political pressure which would warrant these changes.
(3) The third recommendation is to either allow commissioners to serve more than one term, or to increase the length of a term beyond four years. Although the audit concedes that new perspectives are important to an ethics committee, it also argues that having representatives with institutional knowledge may be invaluable.
To this recommendation, Bersin responded that the bill for this change, Senate Bill 63 had already passed in the Senate and moved to the House of Representatives. SB 63 has now been passed, and will be effective as of January 1, 2022.
(4) The fourth recommendation is to allow the OGEC to hire or contract independent counsellors. Currently, the OGEC must use the counsel of or at least obtain the approval of an attorney from the Department of Justice in legal matters. The recommendation warns that this could constitute a conflict of interest, because the OGEC also monitors the DoJ. However, Bersin argues against this.
Bersin said that this recommendation, like recommendations one and two, is based on conjecture of the possibility of conflict rather than on evidence. He also clarified that the OGEC is already able to retain or appoint independent legal counsel when necessary.
(5) The fifth recommendation is to allow complainants to submit ethics complaints about government officials anonymously or confidentially. This policy would strive to reduce the chance that ethics violations go unreported as a result of a complainant’s fear of retaliation.
Although the practice of requiring the identity of a complainant is not uncommon, the Campaign Legal Center and the Coalition for Integrity both warn against it. They warn that such a requirement leads to the potential for fear and isolation among victims and other people with important complaints.
(6) The sixth recommendation is to require all public employees to either receive regular ethics training, or to “document their acknowledgement and understanding of the state’s ethics laws upon hiring and regularly thereafter.”
Ethics training resources do currently exist in Oregon in some capacity. However, the audit found them lacking in comparison with other states’ education programs and consistency, especially amidst the COVID-19 pandemic when the resources shifted to an online format.
Of recommendations five and six, Bersin pointed out that the changes would “expand the work of the Commission and require additional expenditures and new staff.” As such, they would need to be considered at a future Legislative Session.
(7) The seventh recommendation is the establishment of “additional policies aimed at creating and maintaining ethical culture in Oregon government.” This stems from several smaller notes in the audit, including the OGEC’s responsibility to provide up-to-date ethics training and counsel.
According to Bersin’s response, the OGEC may consider the internal creation of a draft “ethical code of conduct” as an aspirational policy statement when they meet on July 31 of this year.
(8) The eighth recommendation is to require Statements of Economic Interest to be filed by school board members. This recommendation is an admonition of the fact that school board members are some of the only elected officials who are not required to file SEIs.
According to the audit, because school board members have significant political sway within their communities, they should be beholden to their constituents like other public officials. That is to say, school board members should divulge their potential financial conflicts of interest.
Bersin responded to recommendation number eight in the same way as numbers five and six, stating that the policy is not within the present scope of the OGEC.
(9) The ninth recommendation is for the time allotted to preliminary reviews to be increased. The preliminary review period is the time in which the OGEC must keep a case confidential during early investigation. According to the audit, the 30-day maximum time limit is an unnecessary and unfair complication to important cases.
The stifling preliminary review period forces investigators to make a decision to either take the case public or shut it down entirely, before they have had a chance to fully investigate the issue. If the case is made public but ends up being dismissed, a government official’s reputation could be harmed. But if the case is closed early, an ethical dilemma may not see justice.
Bersin noted that the bill for this change, Senate Bill 60, had passed in the Senate. It has now also passed in the House, with an effective date of January 1, 2022.
(10-14) The tenth through fourteenth recommendations from the audit are based on transparency and communication between the OGEC, the public, and public employees. These include such details as regular analysis of data to spot trends, expanding ethics training, distributing a regular report about operations, utilizing social media, and updating the ethics manual for public officials.
The OGEC agrees with recommendations 10-14, and most of them have bills in committee, have been completed, or will be started within the year.
By Ardea C. Eichner
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