THE Philadelphia Board of Ethics will on Wednesday consider public comments on its proposed Regulation No. 10 concerning gifts to city-government employees. While we commend the drafters for their well-intentioned attempt to flesh out current city ethics provisions, we urge the board to abandon this impractical and confusing regulation. If adopted, the proposed regulation will lead to the absurd result of encouraging, rather than prohibiting, unethical behavior.
Ethics rules exist to ensure that city employees and officials deal with citizens equally, without advantage conferred by a relationship or disadvantage because of a lack of a relationship. Any gift offered or received by a city official because of his or her official position creates the probability, and certainly the appearance, that the official will provide the giver unfairly special consideration.
The city's charter prohibits all city officials and employees from soliciting or receiving gratuities "for any act or omission in the course of his public work." The city's Code prohibits all city officials and employees from soliciting or receiving gifts of "substantial economic value" that might "reasonably be expected to influence" their exercise of official duties (and also prohibits anyone from offering such a gift). These provisions are enforced by the Board of Ethics. For the 80 percent of city employees under his authority, Mayor Nutter's Executive Order 03-11 imposes an additional strict prohibition on all gifts.
The ethics board's proposed Regulation 10 attempts to address what it perceives as a lack of clarity in these charter and code provisions. The regulation should make application of these provisions easy for city employees and the people who deal with them. It should also restrict unethical behavior. It does neither.
First, the proposed regulation unrealistically distinguishes "gratuities" (in plain English, "tips") from "gifts" (defined as "anything of value" given to officers or employees). The regulation prohibits the solicitation or receipt of gratuities. People and businesses can give city officers and employees monetary gifts of up to $50 and nonmonetary gifts of up to $200, even if the giver has no other relationship with the official/employee and the giver has an interest in the official's/employee's exercise of official discretion.
So the regulation would permit a Health Department inspector to accept up to $50 in monetary gifts and $200 in nonmonetary from an owner of a restaurant he or she inspects - and from as many owners as s/he wishes! Those payments, which could generously supplement a city salary, would be permitted "gifts." Only if a benefit followed, and could be tied to a particular, already-performed inspection would the proposed regulation consider it a prohibited "gratuity." Common sense, as well as our experience as city officials and former prosecutors, teaches that givers and recipients of such benefits are smart enough to disguise as general "gifts" what are really payments for official action.
And, as if this academic distinction between "gifts" and "gratuities" isn't trouble enough, the proposed regulation allows city officials and employees not only to accept, but to solicit, gifts. So, the regulation would permit our hypothetical health inspector to ask restaurant owners - who know that the inspector has discretion to find business-damaging violations in future inspections - for up to $50 in money or up to $200 in nonmonetary "gifts." This wouldn't be a prohibited "gratuity" under the proposed regulation. In real life, though, it's an unacceptable shakedown to buy goodwill for future favorable treatment. That a city regulation - and one promulgated by the city's Board of Ethics, no less - would permit such a result is astounding.
We also object to the proposed regulation's way-too-high dollar thresholds, presumably established to clearly identify what economic value might influence an official. Philadelphia history has shown that payments of as little as $5 to city officials have provided such influence, rendering impossible the establishment of any dollar threshold.
We also see no reason to ever permit monetary gifts. Cash to city officials? Really??
We have a better way to improve the general language of the Ethics Code gifts provision: Amend it to follow the model of the clear and enforceable Mayor's Executive 03-11. The Nutter administration stands ready to work with City Council toward that end. Failing that, however, we urge the Ethics Board to adopt a regulation prohibiting the solicitation from or receipt by any city official or employee of any gift provided solely because of that official's/employee's city position. City employees, and the citizens whose affairs they promote, deserve a regulation that champions, rather than impedes, ethical conduct.