The Portland City Council at its Nov. 4 meeting. Ben McCanna/Staff Photographer

An effort to establish an ethics commission to oversee the most powerful officials in Portland has been derailed after city councilors realized that some people, including the city manager, would have been exempt.

The City Council has held several workshops on the issue and was finally set to vote on creating the commission Monday night. But the Council delayed the vote and sent it back to committee for more discussion after Councilor Kate Sykes raised concerns that the ordinance drafted by the city was not what voters intended when they approved the referendum calling for an ethics panel in 2022.

Zack Barowitz, a member of Portland’s Charter Commission Gregory Rec/Staff Photographer

The proposed ordinance, as written, exempts several high-ranking officials, including the city manager and the school district superintendent.

But that’s not what the charter commission intended, according to Zack Barowitz, who served on the panel and helped craft the referendum.

He said he envisioned it holding not only elected and appointed officials to an ethical standard, but also top city employees such as department heads and the city manager.

“The purpose was to hold powerful people in the city to some kind of ethical standard and to create transparency and accountability,” he said.

The city’s charter commission, a mix of 12 members who were elected and appointed, spent two years reviewing the city’s laws and came up with eight recommendations. One of them was to establish what was described in the commission’s final report as an “independent body” comprised of seven appointees chosen by the City Council.

The group would be charged with establishing a code of ethics for elected and appointed officials and city employees, reviewing the code every three years, rendering written decisions over alleged violations of the code of ethics and issuing advisory opinions on questions pertaining to the city charter, code of ethics and council rules.

About 70% of Portland voters supported the referendum. But it’s taken two years to get a formal proposal in front of the full City Council and some worry this latest delay will simply push back an already overdue action.

“We’ve worked on it, the school board worked on it, their lawyers, our lawyers, I think we’ve exercised our due diligence to carry out the will of the voters,” said Mayor Mark Dion.

ORIGINAL INTENTIONS 

The version of the ordinance presented Monday excludes city and school employees from the commission’s oversight.

Instead, the city’s current protocol would be followed: if an ethical concern is raised about an employee, it would be handled by their manager and the city’s human resources department. The city manager, corporation counsel and the city clerk, report to the City Council, who would handle ethical concerns about those employees in closed executive sessions.

Ryan Lizanecz, who also served on the charter commission and helped Barowitz draft the referendum question, said lower-level city and school employees were always intended to be exempt to protect them from a lengthy, public process and potential harassment. 

“The intent was never for this to apply to the janitors at Portland High School or folks giving out parking tickets,” said Lizanecz.

However, he, like Barowitz, wants powerful positions such as department heads to be under the ethics commission’s purview.

“I understand that the city is trying to draw a line,” he said. “At the same time though, when we wrote the charter amendment, the intent was for it to apply to higher-level city staff.”

Sykes brought forth an amendment Monday to do just that.

Her amendment specifically named the schools superintendent, city manager, city clerk and corporation counsel as subject to the board’s oversight.

Portland City Councilor Kate Sykes Photo courtesy of Kate Sykes

“Once you start creating divisions of who is covered and who’s not covered, you erode the public trust,” Sykes said in an interview Tuesday. She said the intention of the commission is to create a public process should powerful city leaders be credibly accused of unethical behavior.

“It creates transparency and a way for people to feel they have trust in government, which I believe is a very, very important thing at this particular moment,” she said.

A STEP TOO FAR?

Dion, however, thinks the ethics commission should only have purview over elected and appointed officials, and in his book that excludes the city manager, corporation counsel and the city clerk.

He said the draft ordinance reflects what voters approved, despite objections from the charter commission members who came up with the idea. Dion said he has no problem with the ethics board overseeing him and other elected officials, but he thinks oversight of city employees is a step too far.

And he argued that city manager isn’t necessarily as powerful of a position as some make it out to be. He said because the city manager reports the Council, their power is limited.

“The city manager is only as powerful as the Council allows that person to be. They can’t do anything without the approval of the Council,” Dion said.

Mayor Mark Dion speaks at the start of a regular City Council meeting on Nov. 4. Ben McCanna/Staff Photographer

He also said the city is trying to avoid potentially being sued should the ethics commission play some role in an employee being fired.

“There is already a process, the manager is accountable to the Council, other employees are accountable to their managers,” he said.

Ultimately, the Council on Monday opted to table its vote and hold another workshop in February to fine tune the language of the ordinance. It remains unclear when a final vote could be held.

Sykes said she hopes the workshop will offer an opportunity for changes to be made so the ordinance will better reflect the will of the commission that came up with it.

“I think it’s actually much better that the Council take this back into workshop and really look at it,” said Sykes. “Because it’s important for us to explore what the charter commission really wanted and how what we have in front of us now does not match that.”

This story was updated at 9:15 a.m. Nov. 21 to correct how the charter commission members were chosen. Some of them were elected.