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Watching the watchdog

EthicsConservationColleges and Universities

Avery Aisenstark, the chief adviser to the Baltimore City Ethics Board, recently performed outside legal work on behalf of two developers who do business with the city. He insists that he did nothing illegal or unethical, but some outside watchdogs are calling for him to be fired. This should be handled the same way it would be for any other city employee: through a formal inquiry by the Board of Ethics. But whether he is exonerated or reprimanded, the city needs to reconsider the unique structure of his job that calls for him to serve too many masters while being truly accountable to none.

Mr. Aisenstark, who has held his position since 1996, appeared as a private attorney in a Baltimore County court on behalf of a group funded by two prominent developers who also do substantial business with the city. He contends that his advocacy on behalf of David S. Brown Enterprises and the Cordish Cos. in their effort to petition some county zoning decisions to referendum does not violate the law because neither developer does business with his agency, the Department of Legislative Reference.

However, a case could be made that his actions create an appearance of impropriety because of his role as the chief staffer for the ethics board. Part of his job is to provide advice to city officials about ethics matters, and theoretically, the objectiveness of his advice in any matters that involve these developers — say, whether a City Council member can accept tickets from them to a sporting event — could be compromised. The ethics board needs to look into the facts and to consider the implications of the matter, and it needs to do so with the advice and guidance of someone outside of Mr. Aisenstark's department.

Come what may, his job needs to be restructured. Mr. Aisenstark wears two hats. He heads the Department of Legislative Reference, which drafts bills and conducts research, among other activities, for the City Council and mayor; and he serves as adviser to the ethics board. But according to the city charter, he reports to the Board of Legislative Reference, a body established in the charter but which appears not to have convened since Mr. Aisenstark was hired during the Schmoke administration. Only the board is vested with the power to hire or fire the legislative reference director "for incompetence or neglect of duties." The city code, rather than the charter, names the legislative services director as head of the ethics board, but it is unclear whether the Board of Legislative Reference is supposed to be supervising his performance in that role.

As a practical matter, no one is supervising his performance at all, at least not in a formal way. He does not receive performance reviews, although there is reason to think that they would be appropriate, and perhaps even helpful to Mr. Aisenstark. In February, The Sun reported that there had been no comprehensive review of city officials' financial disclosure forms — which Mr. Aisenstark is required by law to collect and maintain — in eight years. A city intern later examined them at the ethics board's request and found that more than half of the required forms were missing, incomplete or incorrect, though many of the errors and omissions were trivial. At present, the agency has no master list of which officials are supposed to submit the forms.

The topic came up at today's ethics board meeting, when Baltimore's new information technology director, Chris Tonjes, offered to put those and other ethics documents online, a process he said that could be completed quickly and relatively easily. If Mr. Aisenstark had been subject to annual reviews, this issue might have been flagged much earlier, and he might well have gotten the resources he needed to rectify matters sooner.

A spokesman for Mayor Stephanie Rawlings-Blake, who is a member of the legislative reference board, said she has seen nothing that leads her to believe that the body needs to meet to evaluate Mr. Aisenstark. City Council President Bernard C. "Jack" Young plans this week to start the process of appointing a council member to serve on the board — none is presently assigned to the job, the requirements of the charter notwithstanding. A spokesman said Mr. Young believes the board needs to meet to discuss Mr. Aisenstark's performance.

The fact that it hasn't is an embarrassment but perhaps not much of a surprise. The charter does not require it to meet on any particular schedule. It does not designate any of the members as chairman and vests the board with no responsibilities besides hiring and firing the director of legislative reference. Moreover, its members, besides the mayor and a member of the council, are to include the president of the Johns Hopkins University, the deans of the University of Maryland and University of Baltimore law schools and the director of the Enoch Pratt Library. To the extent that those people are aware of the board's existence, it is likely not a priority for most of them.

It's important for the ethics board's director to be independent, and this arrangement certainly accomplishes that. But it also leaves Mr. Aisenstark's agency as something of an orphan in city government. No one is responsible for it, and it has been allowed to languish. Including the director, it now consists of just four employees to do the work of both the ethics board and the Department of Legislative Reference.

The idea of having the director of legislative reference also serve as ethics board director was no doubt well intentioned, but it is also flawed. The two roles are distinct, and the current structure fails to provide meaningful oversight or sufficient resources for either. Whether Mr. Aisenstark did anything wrong or not, it needs to be changed.

Copyright © 2014, The Baltimore Sun
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