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Attorney questions ethics of ethics law
Aug 28, 2006 12:00 am
Lebanon's city attorney – who would serve as the city's ethics compliance officer under an ordinance passed on first reading Tuesday – is questioning whether serving in that role conflicts with his ethical obligations as the city's lawyer.
City Attorney Andy Wright is seeking a legal opinion from the Board of Professional Responsibility – a ethical governing body for attorneys in Tennessee – as to whether investigating ethics complaints against city employees and officials would violate the Tennessee Supreme Court's rules on organizational clients.
If the board agrees, it could have statewide ramifications. Cities and counties statewide must pass the model ethics ordinance created by the Municipal Technical Advisory Service by the middle of next year. That model ordinance designates the city attorney as the ethics compliance officer, but allows for the cities and counties to designate someone else.
And if the board believes Wright's dual roles could conflict, it could mean the model ordinance itself could be leading cities down the wrong track.
While outside attorneys are often hired when city employees or officials are involved in court cases, Wright maintains he still represents both the city, its employees and officials.
"They're still my clients – whether I actually represent them or not – the mayor, the council and the city itself," Wright said. "And if my job is to be investigating and finding fault with what my clients are doing, therein lies the potential conflict."
In his letter to the board, Wright points out a rule which specifies interviews conducted in an investigation are subject to attorney-client privilege.
"How can the city attorney properly report to a city council/mayor the findings of an ethics investigation … (or) properly 'make recommendations for action to end or seek retribution for' an ethics violation if the city attorney can't communicate the findings?" Wright wrote in his Aug. 16 letter.
Furthermore, if the city were to change the ordinance to designate someone else, the change would require approval by the state legislature.
"Then it's a potential issue for all city and county attorneys if they stick to the model and don't change it across the state," Wright said.
MTAS Assistant Director Mike Tallent declined to comment on the legal question, saying simply that MTAS "set out several options in that model" ordinance regarding the selection of an ethics compliance officer.
Offered by MTAS as alternatives are a retired judge, another attorney or even a three-person panel selected by the city's governing body.
Reached Wednesday afternoon, Board of Professional Responsibility Chief Disciplinary Counsel Lance Bracy said the question would take some research.
"That would depend upon the full scope of (Wright's) duties, which I have no way of knowing," Bracy said.
State Rep. Susan Lynn, R-Mt. Juliet, who has been a vocal proponent of installing ethics ordinances at the local level, suggested an alternate method of dealing with ethics complaints similar to that at the legislature – one also chosen as an alternate by MTAS.
"Much like we set up through the legislature, a committee of citizens would be a good idea," Lynn said. "Perhaps one council person from each of the precincts could choose someone, then the mayor could choose someone – people who are known in the community for having high ethical standards."
Lynn had sponsored a bill to install an ethics committee at the state level in 2005 – a movement suddenly blasted to the forefront with the arrest of four sitting state legislators in the Tennessee Waltz bribery sting.
The fallout from the arrests led to mandatory ethics ordinances for cities and counties statewide.
Staff Writer Jason Cox can be reached at 444-3952 ext. 45 or by e-mail at firstname.lastname@example.org.