The Actual Use of "Benefit" and "Interest" Language in Conflict Provisions

In my book Local Government Ethics Programs, I have argued for the language of "benefit" instead of the language of "interest." (for some of the reasons why, click here and search for "terminology"). When a colleague asked me for a list of the jurisdictions that do, in fact, use the language of "benefit," I did some eye-opening research. Here are the results, based on the ethics codes in my computer's database (in other words, the information is not complete, but it gives a good picture of language use in local and state ethics codes).

When I refer to the language of "benefit," I am referring to the use of the word "benefit" or an equivalent term in basic conflict of interest provisions, like the City Ethics Model Code's:

An official or employee may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal or financial benefit, not shared with a substantial segment of the city's population, for any of the following persons or entities . . .

I am not referring to jurisdictions that define "financial interest" in terms of "benefit" (a lot of them do). Nor do I include those codes that use the term "benefit" in gift, confidential information, or use of public resources provisions. It is not unusual for the language of "benefit" to appear in these provisions, but not in the same code's basic conflict provisions.

What concerns me most is the use of the term "interest" in a basic conflict provision so that it effectively makes it a violation to have rather than to create a conflict of interest. In addition, I am concerned that the language of "interest" limits conflicts to those where there is financial ownership, which is only one of many ways in which an official may be conflicted.

I found that many codes do use the language of "benefit," but that many of those codes use different terms. The principal alternative term is "gain," which is used in such local ethics codes as those in Boise, Charlotte, Denver, and Louisville. Other terms include "financial effect" (California), "special privileges or exemptions" (Miami), "affect the economic interests of" (San Antonio), "private advantage, benefit, or economic gain" (Los Angeles), "financial gain, contract, license, privilege or other private or personal advantage" (New York City), "anything of value which shall accrue to the private advantage, benefit, or economic gain" (San Diego), and the works: "personal benefit, gain, employment, or profit, or ... to secure special privileges or exceptions" (Winston-Salem).

Some jurisdictions use both the language of "benefit" and the language of "interest": New York City, Seattle, Norwalk, CT, and Chicago ("benefit" is used in a new Chicago provision involving an official's employer).

In addition to those jurisdictions listed above, here is a list of some other jurisdictions that use the language of "benefit" (the Model Code of the International Municipal Lawyers Association also uses it):

Palm Beach County
Phoenix
Arkansas
Florida
Rhode Island

Jurisdictions in my database that use the language of "interest" include Atlanta, Baltimore, Dallas, Detroit, Jacksonville, New Orleans, Philadelphia, and San Francisco.

The problem here is not different approaches. The problem is that there appears to be little discussion about the difference between the language of "benefit" and the language of "interest." It seems that the different approaches are based on who happens to draft ethics codes and what terms they happen to prefer, for reasons that do not appear to be presented to the public, as if they don't really matter. They do really matter.

Robert Wechsler
Director of Research-Retired, City Ethics

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