making local government more ethical

Alternatives to Allowing Conflicted Individuals to Sit on Advisory Boards

Should advisory board and task force members be excepted from conflict of interest rules? Jurisdictions disagree about this. Some believe that, when a board has no authority to act or implement, the usual rules should not apply. The principal argument is that there are times when a government needs to get people with opposing interests together — such as business and union interests — in order to hash out community problems. Another argument is the need for expertise.

This issue is being dealt with in Fort Worth and, as most ethics issues are handled in Fort Worth, it's not pretty. This first of two blog posts on the matter will deal with the issue itself. The second blog post will deal with how Forth Worth has mishandled the issue.

Although there are occasions where an exception to conflict of interest rules may be considered the best way to handle potential advisory board members' conflicts, this would rarely happen. Therefore, the common solution of creating a blanket exception for advisory boards is an irresponsible way to handle such conflicts. There are five alternative ways of handling such conflicts, and one or more of them will be the most responsible way of handling the great majority of situations.

One alternative is to designate members with conflicts as advisory or ex officio members, that is, members who fully participate but do not get a vote.

A second alternative is to allow those with conflicts to testify and advise the task force, rather than serve on it.

A third alternative is to find members with expertise who do not have conflicts, such as retirees, academics, and individuals who have moved on to other careers.

As soon as you recognize that there are alternatives such as these, it no longer seems necessary that advisory board and task force members will have conflicts. If there are other alternatives to excepting advisory board and task force members from conflict of interest laws, it seems irresponsible to do that.

Until I wrote this blog post and thought this matter through, the City Ethics Model Code contained just such an irresponsible exception. The exception was presented as an exception to the definition of "official and employee" in §111.10, so that advisory board members would not be covered by the ethics code:
    A member of an advisory board if, but only if, the advisory board has no authority to implement its recommendations or to act on behalf of the city or to restrict the authority of the city to act.
That's a relatively clear definition of how an advisory board may be distinguished from other boards, but does it do the trick? I don't think so. One reason is that advisory boards make recommendations that are taken very seriously and often accepted as a whole by mayors, councils, and other bodies. Just because they cannot implement their recommendations does not mean that their recommendations are not of great importance.

Another reason why such a definition is not sufficient is that it is worthless for any body that is not trusted by the public to make recommendations. Why set up a task force with conflicted members, whose conclusions will be seen as biased?

There is, of course, the possibility of creating a body consisting of representatives of, say, unions and employers, fifty-fifty, to make joint recommendations. If they can agree, their recommendations would be very useful. But even here, there are two more alternatives.

One alternative is to have the advisory board not be a government body, but instead an independent body created and selected by the unions and employers, or their representative bodies.

The second alternative is that, if it were considered important that it be a government body, and that the advisory board contain members with conflicts, the advisory board could seek a waiver from the ethics commission. Unless this sort of task force is the norm, and it isn't, there is no reason to carve out a broad exception when the waiver process is available to deal with truly exceptional situations.

The waiver process is a democratic and transparent process, because it requires the parties involved to make their case in public, allowing others to either oppose the creation of such a government body, or to argue that interested individuals are not truly essential to the goals for which the body was created. If done correctly, it should cause the public to trust an exceptional body with conflicted members.

With these five alternatives available, there is no reason for a blanket exception of advisory board and task force members from conflict of interest rules. Needless to say, that is the course chosen by the Fort Worth council, a course that will be discussed in the next blog post (along with other problems).

Robert Wechsler
Director of Research, City Ethics