The Detroit Board of Ethics was created nearly 15 years ago to help rid the rot that flourished during Kwame Kilpatrick's Reign of Error. But recent revelations are raising concerns that one of Kilpatrick's former top aides is undermining the board's ability to fulfill its mission.
Conrad Mallett Jr., Kilpatrick's former chief operating officer, is now the city's top lawyer. Mallett's practice of advising city officials on ethical questions — rather than referring them to the Board of Ethics — has allowed some of Detroit's most powerful players to sidestep the independent watchdog agency.
Mallett told me he's not usurping the board's authority so much as providing guidance to officials in quandaries that sometimes demand immediate advice. But
he's also cleared questionable conduct long after it happened.
And his present predicament as a city official and highly-compensated board member of a company that received millions in tax breaks from the city, just prompted the board to vote to investigate Mallett's actions.
The question of whether the Board of Ethics is compromised by its reliance on the city's Law Department has been around long before Mallett returned to city hall in 2020.
I've been concerned about its ability to act as a truly independent watchdog since I learned that every request it receives for public records goes to the Law Department, which determines what to release — and what to redact. There are many reasons this is problematic, which we'll get into momentarily.
We'll also explore how Mallett's interpretation of the Detroit charter, which is the city's constitution, diminishes the ethics board's effectiveness. As corporation counsel, Mallett and the Law Department are responsible for hiring independent counsel. But Mallett has been reluctant to allow Detroit's watchdog agencies to hire those outside lawyers, which the charter says they are entitled to. The charter also says issuing advisory opinions on ethics questions is the purview of the Board of Ethics.
Mallett's own conduct created a thorny predicament for city lawyers who could be asked to advise the board on whether their boss violated the city's ethics rules. You don't need me to tell you what's wrong with employees being asked to evaluate their head honcho.
Oh, and I'll also let you know how the Board of Ethics handled a complaint alleging that Mary Sheffield, while serving as city council president and enjoying front-runner status in the race for mayor, violated Detroit's gift ban by soliciting primo concert tickets from a bank.
Never again?
On Nov. 8, 2011, Detroiters still reeling from the criminal culture that took root in city hall during Kilpatrick's tenure as mayor from 2002 to 2008 — a period so rife with racketeering, extortion, bribery and fraud that Hizzoner, his father and his best friend all went to prison — approved a new constitution.
The charter, as it's known, is an imperfect document. Time has revealed gaps and ambiguities that are worth addressing.
Yet anyone wondering whether clean government was a priority need only look at how the charter is organized.
First up is the Preamble. It's just a paragraph long, but it ends with a pledge "that all our officials, elected and appointed, will be held accountable to fulfill the intent of this Charter and hold sacred the public trust."
Next up is the Declaration of Rights, which says: "The people have a right to expect aggressive action by the City’s officers in seeking to advance, conserve, maintain and protect the integrity of the human, physical and natural resources of this city from encroachment and/or dismantlement."
After a couple pages of pretty standard language about who is eligible to run for office, how long they'll serve and definitions of a slew of terms that appear throughout the charter, the next five pages outline "Ethical Standards of Conduct."
That's a lot of real estate to reinforce a simple principle: "Never again."
Before we dive deeper into the charter and city code, here's why the Law Department's role deciding which records the Board of Ethics can release concerns me:
The board is run by a lawyer who is perfectly capable of determining which records are subject to the Michigan Freedom of Information Act (FOIA). Sending those records to the Law Department adds a layer of bureaucracy that can delay disclosure.
And who prevails if the Law Department wants to redact information that the Board of Ethics believes should be released? Spoiler alert: It's not the Board of Ethics.
Then there's the matter of alerting the Law Department to what you're interested in.
Since the Law Department is responsible for defending the city against lawsuits, it's possible city lawyers may be overly conservative interpreting the Freedom of Information Act to keep you from getting records you might use to sue the city.
Or they might be persuaded not to release public records by superiors with the power to reward or punish them.
I have found most city lawyers to be honorable public servants. But I'll never forget how some members of the Law Department during the Kilpatrick era failed to hand over paperwork outlining a secret deal that called for using more than $8 million in taxpayer money to cover up Kilpatrick's affair with his chief of staff and their efforts to ruin the careers of cops investigating allegations of wrongdoing by Kilpatrick cronies.
Finally, it's hard for the Board of Ethics — or any of the city's independent watchdog agencies — to stand on their own if they can't even handle straightforward public records requests without deferring to the Law Department.
Mallett told me the Law Department isn't trying to meddle with other city agencies.
He said state law requires municipalities to designate a single coordinator for Freedom of Information Act requests, and Detroit chose the Law Department. Mallett said handling FOIA requests allows the Law Department to ensure they are being responded to in a timely manner and in accordance with state law.
All of which sounds good, but doesn't explain why it can take months for the Law Department to fork over public records that some city agencies are prepared to hand over in days — or why they are rife with redactions that sometimes come without justification.
Who ya gonna call?
The last thing I want to do is get into a legal argument with a former chief justice of the Michigan Supreme Court. Still, I'm baffled by Mallett's contention that he can resolve ethical concerns without referring them to the Board of Ethics, as well as his reluctance to let the board hire independent counsel.
The charter, Detroit's ultimate authority on how the city must be run, says the Board of Ethics "shall issue advisory opinions" to city officials with ethical questions. "Shall" is a word most of us don't use unless we're trying to imitate the queen of England, but lawyers know it means something is mandatory.
The charter also says what are known as Requests for Advisory Opinions "shall be rendered upon written request" by a city official asking the ethics board for guidance "regarding his or her own actions."
Let's address that first.
Mallett, who served as chief justice of Michigan's High Court from 1997 to 1999, claimed the charter does not say the board is the exclusive source of answers to ethical questions. While it does say corporation counsel can advise the mayor, council, clerk and agency heads on "matters pertaining to the execution of their functions and duties as governmental bodies and officials," it doesn't say city officials should seek the Law Department's guidance on ethical matters.
And I think it's a stretch to assert that questions about whether to take free trips, tickets or gifts pertain to the execution of any city official's "functions and duties."
Nevertheless, Mallett acknowledged that he dispenses advice to city officials with questions about the city's ethics policy — sometimes during a phone conversation.
"I'm not trying to circumvent the Board of Ethics," Mallett said. "I absolutely have the same interest that the Board of Ethics does in seeing that the government behaves ethically and with integrity."
When I mentioned that the charter said advice must be dispensed after it is requested in writing, and suggested it might be prudent to at least require people seeking his advice to send him an email or text so there is a record of what was asked and what advice he rendered in case the matter later ends up before the board, Mallett said some requests are urgent.
Besides, he noted, requests for advisory opinions grant anonymity to the requestor.
He was not persuaded when I posited that the subject of a complaint to the ethics board might find it handy to waive that confidentiality if they could show they followed the Law Department's advice.
Nor was he swayed when I theorized that public confidence in city officials might be strengthened if, when they face scrutiny, they had a better answer than: "Conrad said I could" — and could prove it.
Mallett also made it clear during our conversation that he is not a fan of city agencies hiring "independent counsel," a term that describes attorneys who do not work for the city's Law Department.
The Board of Ethics says it has the right to hire outside attorneys because the charter says it can "appoint independent counsel when necessary." And it wants independent counsel to avoid potential pitfalls that come with relying on city lawyers.
One concern is that the Law Department, which is required to provide the board with a legal analysis of complaints against city officials, may not be as diligent in determining whether a city official broke the rules because one of the Law Department's top jobs is to defend city officials.
That concern is commensurate with the amount of clout a city official wields.
In some situations, a Law Department attorney can be called upon to prosecute a complaint against a city official, while another Law Department attorney is assigned to defend them. This can cause both ethics officials and the accused to question how hard Law Department colleagues will fight against each other.
Mallett says, in those occasions, the Law Department has provided city officials in the crosshairs with independent counsel.
He declined to say whether he would authorize independent counsel in his case, instead asserting that once the ethics board hears his side, they will drop the matter.
"I think that I have excellent responses," he told me. "I've done nothing wrong."
"My record of service is impeccable."
The Mallett matter
In June, my colleague JC Reindl reported that Mallett is among the highest-paid corporate board members in southeast Michigan.
In August, my colleague Violet Ikonomova revealed that Mallett served on the board of a company that received a significant tax break from the city while he served as a high-ranking city official.
Two weeks ago, the Board of Ethics voted to investigate whether Mallett violated the city’s ethics rules.
Mallett has said he informed Sheffield and her predecessor Mike Duggan of his board role with the Lear Corp., which received about $4 million in tax breaks on a large plant it opened near City Airport in 2022. The Free Press reported that Mallett has received $1.8 million in cash and stock from Lear while serving as deputy mayor, corporation counsel and on the board of the quasi-governmental Detroit Economic Growth Corp., whose staff recommended the tax break.
Mallett told me he was not involved in the deal and city officials kept him in the dark to avoid any potential for a conflict of interest.
Ethics experts from across the country told the Free Press that Mallett was embroiled in a "classic conflict of interest."
Despite the city charter language designating the Board of Ethics as the source of advisory opinions on ethical questions, Mallett instead turned to Alex Parrish of Honigman, which is one of Detroit's most prestigious law firms.
Parrish has known Mallett for more than 40 years, is a fraternity brother, has been a neighbor, and has worked with Mallett on professional and community projects.
Parrish was one of four speakers Mallett invited to make remarks before the dedication of his portrait at the Michigan Supreme Court on April 25, 2012. Parrish called him "my dear friend and colleague," and told family, friends and dignitaries: "My long years of knowing Conrad have not diminished my esteem for the man one iota ... I am convinced that Conrad can do just about anything and do it well."
When I asked Mallett why he didn't get an advisory opinion from the ethics board, he said he was not a city official when he joined the Lear board. After controversy erupted, he said he turned to some of the best lawyers in town.
Parrish has had a long and distinguished career, but he hardly seems like the most objective attorney when it comes to Mallett. The city didn't pay Honigman for Parrish's services, but I don't know whether Mallett hired him or if Parrish offered his advice gratis.
"Alex is one of the finest lawyers that I know," Mallett told me. "He's one of the most ethical men that I've met and he wouldn't do anything to jeopardize his reputation."
He said Parrish would not "sign a letter for his friend that his entire firm is not prepared to stand behind ... This is not a situation where my pal scratched my back."
I appreciate that Mallett did not ask his colleagues in the Law Department for their opinion. That would have put them under tremendous pressure and, even if they genuinely did not see a conflict, I suspect most people would dismiss their ruling as kowtowing to the boss.
Nevertheless, I bet the Board of Ethics are not the only folks noting that Mallett saw the value in seeking independent counsel when his conduct was in question.
On the other hand, he may have been thinking of the board's previous advice to city officials that it would be improper for them to take an honorarium from, or a paid position with, boards of entities that received tax breaks or do business in Detroit.
Madam Mayor cleared
Detroit's charter says city officials can't take anything of value from any person or company doing business with the city, seeking "official action" from the city, or that could be affected by the city official's actions.
That's pretty broad — and not by accident.
After I reported last year that Sheffield solicited tickets from Comerica Bank to one of the events of the summer — Jeezy's concert at the Fox Theatre — Mallett told Sheffield she did not violate Detroit's ethics rules because Comerica Bank doesn't do business with the city. He also told Sheffield her 2019 romantic relationship with the owner of a demolition company she voted to award millions in city contracts did not violate an executive order barring personal relationships between elected officials and contractors because he said executive orders did not apply to council members.
Not everyone saw it that way, which is why the Board of Ethics received a complaint accusing Sheffield of violating the city's ethics policy by seeking and, the complainant alleged, selling the tickets. (Sheffield's campaign told me last year she gave the tickets to community activists, but would not name them.)
After the complainant failed to cooperate with investigators, the board voted in March to dismiss the complaint. I'm still waiting for the analysis the Law Department provided the board. But my bet is it won't differ much from what their boss already told Madam Mayor. In any case, the board didn't need the complainant to cooperate in their investigation. City law says the board can even initiate an investigation without a complaint, if it learns of conduct that raises ethical questions.
Sheffield declined to comment on the outcome of that case. She said through a spokesman that she was aware of the investigation into Mallett, but she "isn't commenting since an investigation has begun and she doesn't want to give the appearance of trying to influence the outcome."
M.L. Elrick is a Pulitzer Prize- and Emmy Award-winning investigative reporter, director of student investigative reporting program Eye On Michigan, and host of the ML's Soul of Detroit podcast. Contact him at mlelrick@freepress.com or follow him on Facebook at ML Elrick and Instagram at ml_elrick
This article originally appeared on Detroit Free Press: Detroiters wanted a pit bull on ethics. It may have been neutered.
