The Common Council hadda update the ethics code. The old code was vague and did not outline what to do in the event someone filed an ethics complaint. That was immediately apparent when a city resident filed a complaint against a zoning appeals commissioner. There was a small group of people who thought that the hearing and investigation into that ethics complaint shoulda never been held. Under the old ethics code, that coulda been a good argument. The smell test, or if it looks like duck and quack likes a duck suggested otherwise. Many of the same people who objected to that ethics investigation, amazingly, showed up to repeatedly to object to the revised ethics code.
At last night’s hearing First Taxing Commissioner Ken Slapin made a speech that mirrored his last public hearing testimony on the ethics code revisions last month. He said that the use of should versus shall made the ethics code without “teeth” and was a structural defect. I asked Mike Coffey about the usage of should versus shall from a legal standpoint and he said that in legal terms there were interchangeable. Not being quite satisfied with that answer I turned to google to see what the current thoughts on that argument are. Not surprisingly, the interchangeability of the words is hotly debated in the legal world. I found reference to a 20 page discussion on the topic! And as lawyers often do, they look to the context, or surrounding text to determine if what was meant was a “suggestion” or a “requirement”. And this gem:
Fowler then opens its discussion with the following short and simple directions: “Roughly speaking, should follows the same rules as shall, and would as will.â€
In their pure form, Fowler continues, shall and should express command or obligation, whereas will and would express intention or prediction, the difference between the two members of each pair being that the second is the conditional form of the first. Hence, “the refugees… shall be permitted to do so†would indicate that Israel is commanded to accept them unconditionally, whereas “the refugees… should be permitted to do so†indicates that this command is subject to a condition — in this case, presumably, that the refugees wish “to live at peace with their [Jewish] neighbors.â€
But wait, there’s more:
To correctly use “shall,” confine it to the meaning “has a duty to” and use it to impose a duty on a capable actor. Bryan A. Garner, A Dictionary of Modern Legal Usage 940–941 (2d ed., Oxford U. Press 1995). Here’s how:
- Lessee shall sell the remaining oil . . .
In other words–
- Lessee [an actor capable of carrying out an obligation] shall [has a duty to] sell the remaining oil . . .
Some suggest that lawyers are incapable of using “shall” correctly, so we ought to banish it entirely. Michèle M. Asprey, Shall Must Go, 3 Scribes J. Leg. Writing 79 (1992). One recommendation is to use “must” instead. Of course, you cannot search and replace every “shall” with “must.” Scrutinize each use carefully.
So, Coffey’s answer was correct, and Slapin’s point was wrong in that he apparently forgot that shall and should mean the same thing, and what he really must have wanted to say, but somehow missed such an important detail, was to recommend the use of the word must.
But that left me wondering why didn’t Matt Miklave, also a lawyer, realize this? And why Kevin Poruban, not a lawyer, thought it so important? They and others in the audience thought that the revised code was not ready to be voted on because of this interchange over should and shall. Kevin Poruban even suggested that because there was a typo that he found, and would not reveal to the council, that the code should not be voted on.
There was a simple remedy to that language concern though. Doug Hempstead after the council meeting said, “Why didn’t they suggest a text amendment to the typo? Why didn’t they make a motion to amend the shoulds or shalls to achieve what they wanted to change?”
Matt Miklave suggested that everyone there last night wanted the ethics code to be stronger, and that by delaying the vote, yet again, to hold yet more public hearings, to debate the issue even more would make the code stronger. Matt Miklave was being entirely disingenuous. For had he truly wanted the code to be stronger, had Mr. Slapin truly wanted the language to be must instead of should or shall, they could have suggested those changes at any point in the past year. They chose not to. The use of should versus shall did not change between the first public draft and the code voted on last night. They had months to tighten the language. And even if we are to give them some slack on not having had enough time to make those changes in the preceding months, all they had to do was make the text changes on the floor.
Lawyers do play games. Lawyers in politics play games on top of games. There were many people who undoubtedly believed that the arguments put forth by Miklave and Slapin were genuine, and that they really wanted to better the language of the ethics code. Sadly, they were uninterested in using their lawyer skills to the benefit of the people. Neither attended the last ethics committee meeting where all changes were discussed and a great many suggestions that the public had asked for were incorporated in the code.
Diane Cece said after the vote, that this was a “sad day for Norwalk”. She felt that the ethics code was not ready to be voted on and that “good enough” wasn’t a high enough standard for the code. She was snookered by the legal froth put forth by Miklave and Slapin, as they intended.
In a way, it was a sad day because some people who should know better were trying to manipulate the system to derail progressive ethics reform. “We did what we thought was right and fair to reform with a progressive, comprehensive ethics code, and it should serve the city well,” Mike Coffey explained. “Sure, there are some things that the ethics panel can change, no legislation is ever perfect, but the important thing is that the council is out of the ethics business.”
And seeing how some council members wanted to drag the ethics code through further months of debate, without committing to any substantive changes, the vote to adopt the new code was a good thing. And for those of you who have any doubt, watch to see if any of the people who saw a flawed document submit any changes to the ethics panel once its been appointed.
