making local government more ethical

Colleges, Knowledge, Gifts to Officials' Relatives, and Advice Regarding Past Conduct

A recent Miami Herald article describes a case that embodies a number of important government ethics issues, including the conflict issues that involve local schools of higher education, gifts to officials' relatives and the officials' knowledge of them, an ethics program's jurisdiction over these relatives, and whether government attorneys should provide ethics advice about past conduct.

The article reports on the ways in which a fast-expanding for-profit medical college has apparently been involved with elected officials and their families. The article says that the college's founder has made over $170,000 in campaign contributions, it has hired a member of the state legislature as an attorney, and it has provided free tuition to that legislator's sister-in-law.

That same legislator sponsored legislation that loosened the accreditation requirements for physical therapy assistant programs which, among other things, allowed the college to rapidly expand its program to five different campuses. The legislation was tacked on to an unrelated piece of legislation just before it was voted on, and "could ultimately boost Dade Medical’s revenues by millions of dollars."

Schools of Higher Education
Schools of higher education are often seen as neutral members of the community. Some ethics programs even have such schools' presidents select the members of their ethics commission. These schools are not neutral members. They are overseen by and cooperate with state and local governments, they are major landowners that often seek permits and changes to city plans, they are major employers whose dealings with unions are often important local political events, and they are both major grantees, grantors, and contractees that affect who in a community prospers. They can affect events and individuals in many ways, including through the provision of jobs, contracts, and scholarships. They and their officers, employees, board members, and alumni can affect elections through their contributions and public support of candidates. Their professors and professionals often provide expert opinions in government and community matters.

Gifts to Immediate Family Members, and Indirect Gifts
Equally interesting are issues relating to the state rep's denials of the conflict situations he did not deal with. After seeking ethics advice from the house of representatives' general counsel, he said that he had no conflict (1) because his sister-in-law is not an "immediate family" member, and (2) because he had no knowledge of her financial-aid status. He apparently said nothing about the work he did for the college.

The first issue is a common one. In too many ethics codes, relationships that give rise to a conflict or an illegal gift are limited to a definition of "immediate family" that falls short of the public's view of which family relationships give rise to a conflict or illegal gift. I find it ironic that when someone gives an example of a conflict, they often speak of giving a contract to one's brother-in-law. This might be sexist (the assumption being that an official's sister is not the breadwinner), but it says something important:  a benefit to a sister's husband (or a wife's brother) is considered a benefit to the household of a member of an official's immediate family, and that's what matters.

The public understand this perfectly, but many elected officials, and their legislative aides or city attorneys, fail to manifest this understanding in the ethics provisions they draft. It is impossible to believe that this is an oversight.

In fact, the general counsel should have pointed to another part of the ethics provision that uses the term "immediate family" and to another ethics provision altogether. The gift provision refers to gifts made "directly or indirectly," which would include a gift made to a sister-in-law on behalf of the state rep. The basic gift definition confirms this by including gifts "accepted by a donee or by another on the donee's behalf." Did the sister-in-law accept the free tuition on her brother-in-law's behalf? That is a question that would require more evidence than the general counsel could have had at his disposal, because the state rep insisted he knew nothing about the gift (that is, his sister-in-law could have accepted the gift on the state rep's behalf without the state rep knowing). Perhaps, for this reason, the general counsel should have said that he could not say whether the state rep had violated this provision.

Advice About Past Conduct
In fact, the general counsel should have told the state rep that ethics advice can only be given regarding future conduct. Once conduct has occurred, it can be dealt with only through an ethics proceeding. Therefore, the general counsel should not have provided advice at all on this matter. He should have told the state rep that only a dismissal of a complaint by the state ethics commission could determine that the state rep had not violated the ethics code.

The second denial of a conflict situation is equally problematic. The general counsel correctly said that knowledge is required for a gift to be illegal. Knowledge as a requirement is strewn throughout Florida's ethics code, including its gift provision. This is one of the many reasons this code is generally recognized as inadequate. The requirement of knowledge is problematic because there is usually no way for the public to know whether the official knew or not. Any official can say that he didn't know, that his family member failed to tell him. If knowledge is required, this denial can prevent enforcement. An official can even deny knowledge of benefits given to him (yes, it happens often).

Therefore, it is not a best practice for knowledge to be a requirement for ethics enforcement. It should instead be taken into account when determining the penalty for an ethics violation.

It is worth noting that the one conflict issue that the state rep certainly knew about — his representation of the medical college — is the one that he did not speak of to the press.

It is disconcerting that, when the state rep was asked, in a follow-up interview, whether his sister-in-law had in fact accepted free tuition to the medical college, he said that he would not ask her because it would be an invasion of her privacy. “I’m not going to dig into my sister-in-law’s personal finances. I would never ask her that question.”

Obligation to Know, or At Least Ask
That raises an important issue. Does a government official have an obligation to ask close family members, friends, and business associates about sizeable gifts they have received from those seeking benefits from or regulated by their government, as well as about jobs or work they have accepted from them, or other such involvements?

Are such questions invasions of privacy or are they public obligations? I think they are the latter. Officials have an obligation to ask those with whom they have close relationships, or appear to the public to have close relationships (a lot of people are not on good terms with some relatives or, for that matter, business associates), about their relationships with and possible gifts from restricted sources, and to let the official know when such gifts or other involvements occur.

It's valuable to look at the these matters from the relative's perspective. Many people see their relative's public power position as a financial opportunity, a chance to portray themselves as a way to get to their relative so that they can get work, jobs, and assorted freebies. What is true of presidents' family members is equally true at the state and local level. High-level officials need to expect that this will happen and deal with this possibility as responsibly as they can.

Disclosure of Failure to Find Out
What if an official is told to mind her own business, or she is simply not in a position to ask due to a falling out of some kind? It would be valuable to the official and the public to disclose their knowledge problem on an annual disclosure form, to say that he is not in a position to disclose the gifts, relationships, or interests of his sister-in-law, however relevant they may be. This gives the public warning that the official has no knowledge of something that could end up causing a scandal, and protects the official from an accusation of an indirect gift and from penalties if an ethics violation occurs. It may not be a complete protection — there might be evidence that the official lied about his relationship with the relative or business associate — but it will certainly provide a great deal of protection as well as information to the public and to restricted sources.

Jurisdiction Over Those With Close Relationships to Officials
Another issue here is, Should an ethics program have jurisdiction over those who have close relationships with officials and accept work, jobs, and gifts from restricted sources? I think they should. They too need to recognize that these individuals can create some big scandals even without the participation or even knowledge of the officials they are related to. Ethics commissions should be permitted to add these individuals to a complaint against the official, interview them, and require them to return ill-gotten gifts. They should also create an online information sheet for such people, and even offer them training, so that they will recognize their obligations as well as the damage they can do their official-relatives.

In short, everyone involved should act like adults who recognize that this sort of thing is common. They should take responsibility for it, and not say that conduct is acceptable just because a relative protects her relative-official by keeping her gifts secret, or at least insisting that she did.

Robert Wechsler
Director of Research, City Ethics