The NCOPO - standards for government ethics, accountability

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By providing a reasonable degree of certainty, the Uniform Code of Official Conduct intends to move ethical compliance from broad strokes traditionally employed for aspirational expressions, to default law providing per se rules to which no conduct can fall below. 

As one court noted regarding its code of judicial conduct, “we recognize that the Code is written in broad language. Prohibitive canons or rules, or laws of any kind written with such a broad brush, give very little notice to those affected regarding the kinds of specific conduct prohibited.”  Matter of Larsen, 532 Pa. 326, 426, 616 A.2d 529, 579 (1992). As explained by Professor Lubet, which while directed to judges, is equally applicable to legislators and executive officials: “A society governed by the rule of law expects much from its [public officials]. In strictly aspirational terms, it is a truism that judicial conduct must be beyond reproach. Aspirations, however, are far too elusive a guide for an individual's personal life. What is “beyond reproach” to one may be condemned by another. In the absence of better articulation, we must fear not only unreasonable discipline, but also discipline that produces an undesirable in terrorem affect on [public officials’] moral and social lives * * * [public officials] need and deserve firmer standards, not necessarily to restrain, but to inform. Steven Lubet, Judicial Impropriety, 1986 Ariz.St.L.J. 379, 379-99 (1986).

However, this is not imply that what the Code is articulating constitutes new rules or understanding of what is ethical conduct. Instead, the Code merely emphasizes what is already well established as malum in se, that is conduct which is what wrong in itself and otherwise inherently evil. The Code adds new provisions solely to aid in enforcing what is malum in se by providing additional components of conduct which is malum prohibita,  not inherently or facially evil; but which the Code deems to be wrong in furtherance of prohibiting conduct which is malum in se. 

Mandating the Doctrine of Absolute Prohibition

To enforce misconduct that is malum in se, the Uniform Code of Official Conduct imposes the doctrine of Absolute Prohibition by promulgating prophylactic rules to assure public officeholders adhere to their fiduciary duty of undivided loyalty to the electorate. The rationale behind the Doctrine recognizes that it may be difficult for any public officeholder to resist temptation when personal interests conflict with their fiduciary duty.  Accordingly, as a matter of default law, it is best to remove altogether such temptations rather than to monitor behavior to uncover and punish abuses when an officeholder has succumbed to such temptation. Accordingly, the Code prohibits all forms of self-dealing. This provides voters the reasonable circumstantial assurance that they will not be deprived of an officeholder’s disinterested loyalty and objective judgment.

Codifying Constitutional Norms

By imposing such doctrine, the Code formalizes by codification the heretofore unwritten, but traditional political protocol established March 4, 1801 by Thomas Jefferson, which modern-day political academics define as Constitutional Norms of Mutual Toleration and Institutional Forbearance. Constitutional Norms are recognized as the necessary appurtenant to the Constitutional system of checks and balances. Mutual Toleration is the recognition that advocates of opposing viewpoints are equally virtuous. Institutional Forbearance is the exercise of restraint from exploiting governmental prerogatives to devalue opposing points of view, in other words, playing “political hardball.” Steven Levitsky and Daniel Ziblatt, How Democracies Die, 1469-1532 (Penguin Random House, 2018). Combining the Doctrine of Absolute Prohibition along with these Constitutional Norms seeks to minimize any risk of of public officeholders’ conduct violating the Linz-Levitsky-Ziblatt Indicators of Authoritarian Behavior, demonstrated by (1) rejection of (or weak commitment to) Democratic rules of the game, (2) denial of the legitimacy of political opponents, (3) tolerance or encouragement of violence, and (4) readiness to curtail civil liberties of opponents, including the press.

Recent enactment of Act 153-2012, 68 P.S. §§ 2102-2120, establishing land banks; much like the Abandoned and Blighted Property Conservatorship Act (Act 135-2008), 68 P.S. §§ 1101-1111; and the Neighborhood Blight Reclamation and Revitalization Act (Act 90-2010), 42 Pa.C.S. §§ 917, 1907; 53 Pa.C.S. §§ 6101-6156, was pushed through the Legislature in a manner criticized in Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989), despite being full of scrivener's errors. Act 153, like Act 135 ignores the rule of law set down in Berman v. Parker, 348 U.S. 26, 34-35 (1954), becoming one more tautology, a new, but unworkable law with absolutely no viable financial support.

Despite enactment of numerous statutes, blight has severely worsened. Housing advocates promoting anti-blight laws ignore a basic rule: Lex non praecipit inutilia, quia inutilis labor stultus (the law commands not useless things, because useless labor is foolish).

Anti-blight legislation must adhere to additional black letter law, North American Co. v. Securities and Exchange Commission, 327 U.S. 686, 705 (1946), requiring  economic and financial realities be not ignored, as “commerce itself is an intensely practical matter.” Swift & Co. v. United States, 196 U.S. 375, 398 (1905). Anti-blight legislation must address the economic reality our Supreme Court labels as the “path of growth,” Surrick v. Zoning Hearing Board of Upper Providence Twp., 476 Pa. 182, 193, 382 A.2d 105, 111 (1977); In re Petition of Dolington Land Group, 576 Pa. 519, 527, 839 A.2d 1021, 1026 (2003) (refusing to overturn Surrick, despite acknowledging suburban sprawl); Overstreet v. Zoning Hearing Bd. of Schuylkill Township, 152 Pa.Cmwlth. 90, 100, 618 A.2d 1108, 1113 (1992) (defining “path of growth”).

Because liability follows tortious conduct, Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938); Niederman v. Brodsky, 436 Pa. 401, 403, 261 A.2d 84, 85 (1970); Anti-blight legislation must impose liability on the two tortfeasors responsible for blight, the owners who violate the law; and the municipalities who allow owners to violate the law.

Anti-blight legislation must have a permanent, self-funding mechanism. See, e.g., Frank S. Alexander, Land Banking as Metropolitan Policy 13 (Oct. 2008). Ignoring such necessity as previously advocated by housing advocates results in law incongruous, absurd, and unjust. See, e.g., Pub. Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 454-55 (1989).

Anti-blight legislation must provide a precise roadmap for judges. See American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 412 (1950); Sproles v. Binford, 286 U.S. 374, 393 (1932).  Ambiguous statutes leave the courts no choice but evoke the rule of lenity. Reno v. Koray, 515 U.S. 50, 65 (1995).  Not only does prior law fail to satisfy due process as “no standard of conduct is specified at all,” Coates v. Cincinnati, 402 U.S. 611, 614 (1971), but fails to provide “reasonably clear guidelines.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

The Model Abandoned and Blighted Property Receivership Code ("ABPRC") abandons the universally discredited “urban homesteading” principle (originating in Philadelphia) for generally accepted “Scattered Sites” principle affirmed by the U.S. Supreme Court in Berman v. Parker 348 U.S. 26, 34-35 (1954).

The ABPRC is a “Limitations” law extinguishing property rights already abandoned, per the common law of appropriating the derelict, repeatedly upheld as constitutional.

ABPRC provides a specific eight-step, 90-day judicial process to start an expedition eradication of blight plus collection of back taxes, without imposing on the public treasury.

ABPRC provides a dedicated self-financing process, funded by tortfeasors, not the taxpayers, to pay for rehabilitation. 

ABPRC provides a comprehensive delegation of rehabilitation of abandoned and blighted property through community entities, under direct court supervision, while the municipality implements a comprehensive plan to prevent blight from returning.

While ABPRC is primarily technical in form, it reflects the inevitable progression of receivership law advocated by professors Charles Sabel and William Simon in their ground-breaking 2004 Harvard Law Review article. As adjudicative bodies, courts are supervisors, not general contractors.