1. Ethics and the historic preservation commissioner
Georgia Historic Preservation (HPC) Training
Columbus, Georgia
November 4, 2015
Melvin B. Hill, Jr., Esq.

2. Why Ethics?
Look up!
Look up again!
Kaboom!

3. “exam cheating scandal hits navy nuclear training school” February 5, 2014
Chief of Naval Operations Adm. Jonathan W. Greenert and Adm. John M. Richardson, director of the Naval Nuclear
Propulsion Program, Pentagon new conference

4. “Ethics is knowing the difference between what you have a right to do and what is right to do.”
- (former) United States Supreme Court Justice Potter Stewart

6. It it’s necessary, it’s ethical. If it’s legal, it’s ethical.
Rationalizations for Ethical Lapses (from the Josephson Institute of Ethics)
It it’s necessary, it’s ethical.
If it’s legal, it’s ethical.
It’s just part of the job.
It’s all for a good cause.
I was just doing it for you.
I’m just fighting fire with fire.
It doesn’t hurt anyone.
Everyone’s doing it.
It’s ok if I don’t gain personally.

7. WHY CODES?

10. Why have a code of conduct?
Local officials are vulnerable to charges of conflict of interest.
Anyone can charge an official with improper conduct.
When there is no code of ethics to define standards, there is no way to prove actions are not improper.

11. Public Duty
A public officer has the duty of serving the public with undivided loyalty, uninfluenced in his/her official actions by any private interest or motive whatsoever.

12. CODES OF CONDUCT IN GEORGIA LAW

13. Georgia Constitution ARTICLE I, SECTION II
Paragraph I. Origin and foundation of government. All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people and are at all times amenable to them.
Paragraph II. Object of government. The people of this state have the inherent right of regulating their internal government. Government is instituted for the protection, security, and benefit of the people; and at all times they have the right to alter or reform the same whenever the public good may require it.

14. Georgia Statutes, o.c.g.a Code of Ethics for Members of Boards, Commissions, and Authorities
Notwithstanding any provisions of law to the contrary, each member of all boards, commissions, and authorities created by general statute shall: (1) Uphold the Constitution, laws, and regulations of the United States, the State of Georgia, and all governments therein and never be a party to their evasion; (2) Never discriminate by the dispensing of special favors or privileges to anyone, whether or not for remuneration; (3) Not engage in any business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties;

15. Georgia Statutes, o.c.g.a. 45-10-3
(4) Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit; (5) Expose corruption wherever discovered; (6) Never solicit, accept, or agree to accept gifts, loans, gratuities, discounts, favors, hospitality, or services from any person, association, or corporation under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence the performance of the member's official duties;

16. Georgia Statutes, o.c.g.a. 45-10-3
(7) Never accept any economic opportunity under circumstances where he knows or should know that there is a substantial possibility that the opportunity is being afforded him with intent to influence his conduct in the performance of his official duties; (8) Never engage in other conduct which is unbecoming to a member or which constitutes a breach of public trust; and (9) Never take any official action with regard to any matter under circumstances in which he knows or should know that he has a direct or indirect monetary interest in the subject matter of such matter or in the outcome of such official action.

17. COUNTY AND MUNICIPAL CODES

18. MODEL MUNICIPAL CODE ANNOTATED

19. PROFESSIONAL CODES OF CONDUCT

20. Icma code of ethics
The mission of ICMA is to create excellence in local governance by developing and fostering professional local government management worldwide. To further this mission, certain principles, as enforced by the Rules of Procedure, shall govern the conduct of every member of ICMA, who shall:
Tenet 1
Be dedicated to the concepts of effective and democratic local government by responsible elected officials and believe that professional general management is essential to the achievement of this objective.
Tenet 2
Affirm the dignity and worth of the services rendered by government and maintain a constructive, creative, and practical attitude toward local government affairs and a deep sense of social responsibility as a trusted public servant
Tenet 3
Be dedicated to the highest ideals of honor and integrity in all public and personal relationships in order that the member may merit the respect and confidence of the elected officials, of other officials and employees, and of the public.

21. Icma Code of Ethics Tenet 4
Recognize that the chief function of local government at all times is to serve the best interests of all people.
Tenet 5
Submit policy proposals to elected officials; provide them with facts and advice on matters of policy as a basis for making decisions and setting community goals; and uphold and implement local government policies adopted by elected officials.
Tenet 6
Recognize that elected representatives of the people are entitled to the credit for the establishment of local government policies; responsibility for policy execution rests with the members.
Tenet 7
Refrain from all political activities which undermine public confidence in professional administrators.  Refrain from participation in the election of the members of the employing legislative body.
Tenet 8
Make it a duty continually to improve the member's professional ability and to develop the competence of associates in the use of management techniques.

22. ICMA Code of Ethics Tenet 9
Keep the community informed on local government affairs; encourage communication between the citizens and all local government officers; emphasize friendly and courteous service to the public; and seek to improve the quality and image of public service.
Tenet 10
Resist any encroachment on professional responsibilities, believing the member should be free to carry out official policies without interference, and handle each problem without discrimination on the basis of principle and justice.
Tenet 11
Handle all matters of personnel on the basis of merit so that fairness and impartiality govern a member's decisions, pertaining to appointments, pay adjustments, promotions, and discipline.
Tenet 12
Seek no favor; believe that personal aggrandizement or profit secured by confidential information or by misuse of public time is dishonest.

23. A LAWYER'S CREED
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy, I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.
To the profession, I offer assistance. I will strive to keep our business a profession and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients.

24. Professionalism vs. Ethics
Former Georgia Supreme Court Chief Justice Harold Clarke

25. Professionalism vs. Ethics Interview with Chief Justice Harold Clarke, Founder of The Chief Justice’s Commission on Professionalism, Decatur-Dekalb Bar Quarterly, Vol. 5, No. 10, June 1990
“Professionalism differs from legal ethics in the sense that ethics is a minimum standard required of lawyers while professionalism is a higher standard expected of all lawyers. Professionalism imposes no official sanctions. It offers no official reward. Yet, sanctions and rewards exist unofficially. Who faces a greater sanction than lost respect? Who faces a greater reward than the satisfaction of doing right for right's own sake? …professionalism ought to involve a commitment to solving problems, a commitment to public service, a commitment to the public interest, and a commitment to being good human beings.”

26. Professionalism vs. Ethics
…I think the strongest goal that anyone could have would be a goal of awakening … an awakening to the responsibilities that go with the profession, the duties that go with it, and the good feeling of satisfaction that comes from fulfilling those responsibilities and duties …
…I would cause lawyers all over the State to several times a day when they are doing their work say, ‘Is this the way a professional ought to do what I am doing right now?’ I would cause them to maybe just stop occasionally and answer that question in their own minds. And if it says yes then go on with it, and if the mind says no then reassess what they are about to do. I expect if lawyers would do that four, five or six times a day, that we might find a right substantial difference in the way in which law is practiced.”

27. Developed by members at the NAPC Forum in Baltimore, 2006
Reviewed and adopted at the NAPC Annual meeting in Pittsburgh, 2006
Purpose is to promote and maintain the highest standards of honesty, integrity and professionalism among commissioners and staff.

28. NAPC Code of Ethics 2007
Guidelines for ethical conduct organized under three main categories:
Responsibility to the Community
Responsibility to the Profession
Standards of Professional Conduct

29. Responsibility to the Community
The most effective historic preservation takes place locally, and all preservation commissioners and staff should remember that it is their duty, as public servants, to advance the greater good of the community.

30. Responsibility to the Profession
Preservation commissioners and staff come from many disciplines but are joined by their commitment to preserve heritage resources in their communities. In their commission work, they have an obligation to advance the best interests of the multi-disciplinary profession that has developed over the years from the preservation movement.

31. Standards of Professional Conduct
As public servants, commissioners and staff are expected to conduct themselves in accordance with the law. These standards set forth both a baseline for such legal conduct as well as aspirational goals for ethical behavior that may require a conscientious effort to attain.

32. Conflicts of Interest
The question is whether the public official, by reason of a personal interest, is placed in a situation of temptation to serve his/her own purposes to the prejudice of those for whom the laws authorize him to act.

33. Appearance of Conflict
Would an impartial concerned citizen, apprised of all the facts, feel there was the potential for non-objectivity on the part of the commissioner making the decision?

34. Types of Conflicts of Interest
Direct pecuniary interests
Indirect pecuniary interests
Direct personal interests
Indirect personal interests

35. Direct Pecuniary Interests
A commissioner voting for the approval of a certificate of appropriateness for a business when the commissioner has an interest in that business.
An architect on the commission voting for a certificate of appropriateness when he designed the change the owner is applying for.

36. Indirect Pecuniary Interest
Where there is a financial tie between the public official and the matter under consideration.
Interest not so immediate that official will necessarily realize a financial benefit or loss by the outcome.
Commissioner is employee of a company which would benefit from commission action.

37. Direct Personal Interest
Interest is not financial but is of immediate and unique importance to the individual.
Voting on a matter of great importance to a blood relative or a close friend.
Direct personal interests may be “negative”
One should recuse oneself on any matter involving a personal enemy or adverse party in personal litigation.

38. Indirect Personal Interest
Situations where an individual’s judgment may be affected because of membership in some organization and a desire to help that organization further its policies.
A commissioner who is a member of a church that is applying for a certificate of appropriateness.

39. Bag of Bagels Rule
One of your commissioners is a baker. One of his customers who buys a bag of bagels every Sunday has an application for a certificate of appropriateness. Should she disqualify herself?
De minimis: it does not rise to a level of appearance of conflict, much less conflict

40. Avoiding a Conflict Develop sensitivity to these issues.
Look at each agenda & analyze for conflict.
Ask if there is any reason you can’t be completely objective on any agenda item.
If you’re not sure, ask the commission or the local government attorney.
If you think another member has a conflict, raise the issue.

41. As society values compete, so may ethical principles.
The need for full disclosure may compete with the need to respect confidential information, for example.
The ethical commissioner or staff member must balance various public and private interests based on the facts and context of each situation guided by the commitment to serve the public interest.

42. Additional Ethical Principles
Leave the chamber if remaining would give the impression that the commissioner’s presence influenced the outcome of the matter.

43. “A good name is rather to be chosen than great riches.”
Proverbs 22:1

44. ETHICAL SCENARIOS

45. Scenario No. 1
Many of us have experienced the frustration of arriving at a meeting to find that once again the ghost commissioner is not present. It is just as frustrating to realize that a particular commissioner is totally unprepared for a meeting because of not having read the material, not being familiar with the regulations, or not having visited the site. Is this an ethical issue or just an annoyance? How would you address it?

46. Scenario No. 2
You are invited to attend a local sporting event by a property owner who has an application for a certificate of appropriateness pending before the Preservation Commission. The offer involves dinner in a private box in the domed stadium. What is your response? Does you response change if the invitation comes from a local developer who does not have an item pending before the commission? Does it change if the entire commission is invited?

47. Scenario No. 3
The president of a local preservation organization approaches you at a meeting of the Rotary Club and wants to discuss an application pending before the Preservation Commission? What should you do? Would your response be any different if it were an individual applicant who approached you? The architect for a pending project?

48. Scenario No. 4
Your spouse is a preservation consultant (or archaeologist, or interior designer) who hopes for work from a developer, and guess who’s before you for a certificate of appropriateness. What should you do?

49. Scenario No. 5
You have been a member of a commission for a couple of years. You and your spouse also have a membership in your local preservation organization. This organization often takes positions on issues before the commission. You pay your dues, attend the organization’s social functions and volunteer as a host on the annual tour of homes, but you have not been very active. The nominating committee asks you to serve as an officer in the coming year. What should you do?

50. Scenario No. 6
What do you do when you don’t believe what you’re hearing at a hearing? An “Expert witness” for an applicant makes statements that you believe are untrue based on your professional expertise or past experience in preservation.

51. Scenario No. 7
Here she comes again! This applicant has been here before and you denied her application to build a fence in her front yard. The city council reversed your decision on appeal and the applicant gloated in a newspaper interview. Now she wants to put an addition on her house. You feel the urge to “get even”. What should you do?

52. Scenario No. 8
Some property rights advocates have been attending our regular meetings and recording the proceedings. They are strongly against the designation of additional properties and districts and would like to see the existing ordinance weakened or repealed. They are looking for anything they can use against the commission politically. You feel you can’t talk frankly among yourselves. All the members agree to meet at your house on Saturday morning to discuss strategy for dealing with these troublemakers and for getting the pending nominations passed. Any ethical implications?

53. Scenario No. 9
Two individuals have been nominated to serve as members of the Preservation Commission. Several developers raise objections because one nominee lives in an historic district and the other one is a preservation professional. The opponents charge there is an inherent conflict of interest and the individuals involved cannot be unbiased. Are there ethical or legal problems here?

54. Scenario No. 10
You were appointed to the Preservation Commission because of the strong relationship you have developed with the mayor through years of working on political issues. The Mayor, who perceives you as a friend and ally, repeatedly calls you about Preservation Commission issues to influence your position and provide the “Mayor’s perspective.” This seems natural for political allies, but you have a sense these conversations may be improper. Is there an ethical issues here? How should you respond to the mayor?

55. Scenario No. 11
A homeowner approaches a member of the commission who is a landscape architect. The homeowner knows that the commission has turned down several applications for circular driveways and parking pads in the front yard. He asked the commission member how he could design his project to avoid a similar fate. How should the commission member respond? Are there potential problems if a commission member calls an unsuccessful applicant after a meeting to offer advice as to how the applicant might be rewritten to gain approval?