making local government more ethical

A Conflict Regarding Conflicts

Here's a situation from Lafayette Parish, a city of 220,000 in south-central Louisiana, which shows how when one official fails to deal responsibly with his conflicts, he is likely to be complicit in helping other officials deal irresponsibly with their conflicts and with those of their colleagues. When this official is a government attorney, it can cause an entire board or agency to deal irresponsibly with a conflict.

According to a long investigative article in yesterday's Independent Weekly, the former chair of the Lafayette Public Trust Finance Authority (LPTFA) resigned from his position in November 2009, and appeared before the LPTFA on December 2, representing as a consultant an apartment development for which he and his board had been instrumental in obtaining land and funding.

About two weeks before the chair resigned, he also signed on as a consultant for a developer of a subdivision in which the LPTFA also participated by loaning the Lafayette Housing Authority (LHA) $400,000. The LPTFA's counsel was also allegedly counsel for the developer, as well as for the LHA. At least one of the consulting arrangements was disclosed to the board.

According to the article, not one of the LPTFA members, nor its attorney, raised a question about the former chair appearing before it in a matter he had participated in, at least according to the minutes. Nor did anyone seek advice from the Louisiana Board of Ethics, which has jurisdiction over local government officials.

It's worth noting that the LPTFA board members were new because the old members had mistakenly believed that the ethics reforms made them subject to new personal financial disclosure requirements, and they resigned en masse. Ethics reform was big news at the time in Louisiana. It was discussed on the front page and in editorials. The board members would have been more aware of government ethics issues than woudl normally be the case.

Is the Official the Only One Who May Deal Responsibly with the Official's Conflict?
LPTFA's counsel clearly knew there was an ethics issue, even before the appearance. He told the reporter that he asked the former chair for assurance that the former chair's serving as a consultant on the project would not violate the state ethics law. He believed that the matter was for the former chair alone to decide. The former chair said that he had performed due diligence and had determined that the consulting agreement was not an ethics violation. Apparently, this same request was not made with respect to appearing before the LPTFA, perhaps because the former chair was no longer a public servant, although he remained subject to the state ethics code.

However, an ethics decision is not solely the province of the official. First of all, the board, its counsel, or the former chair could have asked the state ethics commission for advice. Second, the board could have voted not to allow the former chair to appear before it. Both the counsel and the board have an obligation to protect the board's proceedings from undermining the public's trust in the authority.

When a Government Attorney Has a Related Ethics Problem, Should He Withdraw from Others' Ethics Matters?
But the most interesting issue here involves the LPTFA counsel's own situation. According to the article, and I will assume it is true for the purpose of looking at this issue,  the LPTFA counsel had his own conflict issues, because he represented developers doing business with the LPTFA and the the LHA. It does not appear that the counsel sought advice from the state EC for his own possible conflicts, nor was he was dealing with them responsibly in any other way.

It is hard for an attorney who has not sought out ethics advice for himself to ask his client's chair to seek out ethics advice. The attorney clearly wanted to deal with the matter himself, so that is all he asked of his client's chair.

The attorney was right not to make the decision for the chair. But he was wrong not to tell the board that he himself had a possible conflict and that someone else should be advising them and the chair on this matter. An alternative course of action would have been for him to do the most responsible thing, that is, seek or recommend to the board that it seek advice from the state EC if the chair was not willing to do so.

A government attorney should deal responsibly with his conflicts. If he is not doing so, he should at least have the decency to tell his clients and their members that he is not in a position to deal with ethics matters at all, and withdraw from any participation in them. Otherwise, he is effectively complicit in any violation that occurs. Even if he chooses not to say why he is withdrawing, withdrawal without disclosure is far better than limiting his advice and action due to his own personal ethics problems.

For more on this matter, see another long investigative article, in the Advertiser, from January.

Robert Wechsler
Director of Research, City Ethics