County Commissioners Consider Tougher Ethics Rules
By Beth Milligan | Feb. 28, 2019
Grand Traverse County commissioners are considering tightening the rules regulating their ethical behavior – a move that follows two conflict-of-interest controversies involving commissioners in recent years and a warning by the county’s legal counsel that the current policy is deficient and unenforceable.
A request from Commissioner Betsy Coffia to review the county’s conflict-of-interest and ethics policies prompted a Wednesday study session on the subject, with all seven commissioners present for the discussion. Coffia cited recent controversy surrounding former Commissioner Tom Mair’s decision to cast the deciding vote appointing his wife, Susan Odgers, to the Traverse Area District Library board as spurring her interest in revisiting the county’s ethics rules.
“Conflict of interest became a pretty hot topic right out of the gate, and also frankly from a citizen perspective coming in as a first-time elected official, I’ve been aware over the years of multiple situations (where) it’s come up,” Coffia said. “It just really inspired me to kind of look a little deeper at what we do have on the books.”
Deputy Civil Counsel Kit Tholen gave commissioners an overview of the county’s existing ethics policy, as well as provided examples of neighboring policies in Emmet, Antrim, and Leelanau counties. While Grand Traverse County’s policy outlines general guidelines for county employees and officials – including not disclosing confidential information, not accepting gifts or favors, and not improperly using county resources or financially benefiting from county business – the guidelines are vague regarding conflicts of interest and do not provide specific examples of inappropriate behavior. Nor do they clearly define what constitutes unethical behavior, Tholen said.
“It’s also not very definite on what a conflict of interest is, what a commissioner would be prohibited from doing,” he said.
In Antrim County, by contrast, the commission’s ethics policy spells out detailed conflict-of-interest scenarios that, among other rules, prohibit commissioners from voting on any issues involving family members, business associates, employees, or household members. Had such a rule existed in Grand Traverse County, it would have applied not only to Mair but also to a 2013 case in which former Commissioner Dan Lathrop cast a deciding vote extending expanded authority to County Drain Commissioner Kevin McElyea, with whom Lathrop lives and owns a home. Bob Cooney, then the county’s prosecuting attorney, said at the time he believed Lathrop had a conflict of interest and expressed frustration that the county’s policy wasn’t clearer about how commissioners should handle such situations.
Tholen said Grand Traverse County could consider adding a rule that county commissioners not vote on issues involving their domestic partners, along with other language expanding the definitions of what constitutes a conflict of interest or ethics violation. But he noted that even if commissioners rewrite the policy, they will also need to pass a resolution in order for the rules to even apply to the board. Tholen said “the best reading of the law” is that the county’s ethics policy is only applicable right now to county employees, who sign paperwork upon being hired agreeing to follow the policy or face possible termination. Commissioners – who can’t be terminated as elected officials, only removed from office by the governor – have not imposed any similar formal requirement on themselves to follow the policy.
“You haven’t adopted a resolution saying, ‘This is applicable to us,’” Tholen explained. “You haven’t signed anything…saying, ‘I agree to be bound by this.’” Coffia pointed out that commissioners also aren't briefed on the county’s ethics and conflict-of-interest policies upon taking office, though they receive overviews of other rules governing their conduct, like the Freedom of Information Act (FOIA) and Open Meetings Act (OMA). Tholen said commissioners could take action, like adopting a resolution explicity stating the county's ethics policy applies to them or signing agreements binding themselves to the rules, in order to give the policy teeth. "But as of right now, I don’t see anything that’s telling me that you are in fact bound by this ethics policy," he said.
In addition to expanded definitions of ethical/unethical behavior and a resolution to ensure the policy is actually applicable to commissioners, Tholen said a third component commissioners should consider is how the policy is actually enforced. In other counties, commissioners can face disciplinary action including being ordered by the chair to recuse themselves from a vote where a conflict of interest is present, face a public reprimand from other board members, or be stripped of perks like committee seats and travel budgets if they violate the rules. Grand Traverse County’s policy is “lacking in all three of those things,” Tholen said. “The applicability of it to you, the definition of what is actually prohibited, and then the procedure if you were to be actually held in violation of it.” An enforcement procedure would also outline steps commissioners could take to defend themselves against an accusation of an ethics violation, ensuring there was due process before disciplinary action was taken.
Chair Rob Hentschel expressed skepticism about changing the county's policy, asking the board how they would respond if a commissioner refused to sign a document binding themselves to the rules. Coffia said such an action would be “a marker” to voters, who might question why a commissioner would refuse to adhere to an ethics policy. Hentschel countered that voters could choose to replace any commissioner who they believed wasn’t acting ethically at the polls. “If the voters are the mechanism, then why have the policy?” he said.
But other commissioners supported tightening the rules, with Coffia adding she didn’t want to wait two years between elections for action to be taken. “As the policy currently reads, I feel like it’s very weak and there are things that we could do to tighten it up and hold ourselves accountable and value public trust,” Coffia said.
Commissioners Bryce Hundley, Gordie LaPointe, and Addison “Sonny” Wheelock also expressed interest in revising the policy, indicating support for a suggestion by Coffia to form an ad hoc committee to work on changes to the policy and bring them back for a board vote. Because it was a study session Wednesday, commissioners did not formally vote to create an ad hoc committee, but can do so at an upcoming regular meeting. Wheelock said updating the policy could create clearer guidelines for county commissioners to follow going forward, even for those who believe that instances of conflicts of interest are self-evident.
“I hate it when we have these policies…but there’s truly no definition of what creates the conflict and what we’re going to do about it when the conflict occurs,” Wheelock said. “Unfortunately, we all sit here and we think that an ethics policy is common sense, but somehow or another common sense doesn’t seem to be too common anymore.”