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Royal Oak

January 16, 2013

Ethics pledge deemed unconstitutional

Amendment to city charter would be needed as first step

By Chris Jackett
C & G Staff Writer

ROYAL OAK — A much-hyped ethics pledge proposal has been deemed unconstitutional.

Mayor Pro Tem Patricia Capello proposed the ethics pledge at the Sept. 10, 2012, City Commission meeting, with hopes that the nine-sentence pledge would be adopted and recited prior to every City Commission meeting.

After many commissioners voiced that they took offense to the proposal or thought it should’ve taken the proper route through the Rules Committee, the City Commission held over any decisions until the Oct. 1 meeting, which is when they referred it to City Attorney David Gillam for a legal opinion as to whether many of the items in the proposal could even be legally recited prior to meetings.

“We were given a legal opinion in closed session concerning the viability of that suggestion,” City Commissioner Jim Rasor said Jan. 7. “I think it would be important for the public to understand why that suggestion would not come to this commission table as a viable option.”

The Oct. 11 opinion from Gillam was unanimously voted to be publicly released Jan. 7.

“To the extent that the proposed ethics pledge requires a member of the City Commission to take an oath to do anything more than what is required by the city charter, the pledge is not enforceable,” Gillam said in a memorandum, citing Article XI, Section 1 of the Michigan Constitution.

The article relates that all officers — legislative, executive and judicial — already take an oath before assuming their duties and cannot be required to take any other oath, affirmation or any religious test.

“To the extent that this article may be applicable to elected municipal officials, the ethics pledge is unconstitutional,” Gillam said in the memorandum.

However, Gillam said an amendment to the city charter would be required as the first step toward making the ethics pledge enforceable.

“Under the existing charter, the pledge could be optional, but cannot be required of any member of the City Commission at any time,” Gillam stated.

Gillam said Royal Oak falls under the state’s Home Rule City Act, which allows the city to amend its city charter. Chapter Three of the city code, entitled “Form of Government,” indicates the various oaths an elected official takes to support the U.S. and Michigan constitutions, which does not currently leave room for additional required oaths or pledges.

“What I think is important is that commissioners carry themselves to the highest standards of conduct and that their constituency has trust and faith in their ethics,” Capello said via email. “Whether we make a pledge or not, the people need to trust that we conduct their business in their best interests, not in our own.

“I am not planning to submit a new variation, as the ethics ordinance is under consideration for change at the rules committee. I will await the recommendations of this committee before I pursue any further actions.”

Although the City Commission was largely mute on the release of Gillam’s opinion on the ethics pledge during the meeting, some residents in attendance were not.

“We’re going to get a legal opinion and that’s going to make everything kosher? I don’t think so,” resident Ron Wolf said during public comment. “I feel sorry for you, Jim (Rasor). I like you as a person, but you shot yourself in the foot. … Without controversy, the devil has his way in this town.”

To view Gillam’s full legal memorandum, visit www.ci.royal-oak.mi. us/portal/sites/default/files/meetings/ City%20Commission/2013/Memo RegardingEthicsPledge.pdf.

You can reach C & G Staff Writer Chris Jackett at cjackett@candgnews.com or at (586)279-1110.