You are here
Confusing Pre-Existing Conflicts with Conflicts Created by Events
Tuesday, March 26th, 2013
Robert Wechsler
Many people believe that conflicts of interest are in and of
themselves bad, and that government ethics laws should prevent those
with conflicts of interest from becoming public servants. Many
people believe that government ethics is about being good or bad.
When the two come together in one person and one speech, the result can be fireworks.
People who have misconceptions about government ethics also tend not to be able to distinguish between different sorts of conflict situation. Here, the problem was distinguishing between pre-existing conflicts and conflicts created by events.
The person, in this case, is Connecticut gubernatorial candidate past and future Tom Foley, who testified yesterday before the state legislature's Government, Administration and Elections Committee in favor of Senate Bill 727.
Here is the operative language of the bill:
The view that conflicts must be prohibited is not all that uncommon. Many ethics codes prohibits conflicts from existing. Such a prohibition is often not even discussed, apparently because officials wrongly believe that this is what is done, this is what government ethics requires.
Confusing Types of Conflict
There are two problems here. One problem is that two types of conflict are being confused. The proposed provision is worded like a gift provision (which applies only to conflicts created by the event of the gift), and yet it also applies to the payment of a salary to a public servant who held the job when she ran for office. This is not a gift at all, but a relationship that, in certain circumstances, would be a pre-existing conflict. This conflict can easily be dealt with through withdrawal, and it carries no appearance of impropriety.
The other type of conflict could actually be construed as a gift: a job offer made to a public servant, in most cases legislators, who are given part-time pay. A lot of the jobs given to legislators are given to them because they are legislators, because they have power and connections that can be valuable to businesses, nonprofits, law firms, and unions. But such job offers should be dealt with separately, both from gifts and from pre-existing conflicts. And they should be dealt with carefully, in such a way that only those jobs that create a serious appearance of impropriety are prohibited.
How Best to Handle Job Offers
A better approach is to prohibit officials from soliciting employment offers from anyone who does business with his agency. For a state legislator or council member, this should be generalized to apply to offers from anyone who does business with the government. This approach is common in post-employment provisions. But it is less common with respect to sitting legislators, who are the principal target of this kind of rule.
An alternate approach is to require withdrawal from all matters relating to one's employer or, if the employer represents those doing business with the government, from all matters relating to the clients of one's employer. This approach effectively removes the advantage a legislator has in getting jobs with those doing business with the government.
Finger Pointing
It's not just the prohibition of a wide range of jobs that got even Foley's fellow party members up in arms. It's also the way Foley pointed his finger at legislators and accused them of crimes. According to an article in today's New Haven Register, Foley told the GAE Committee, "Part of the problem is that the foxes are running the henhouse. Our ethics rules start off as ethics light and then on appeal everyone is given a pass because people have a right to earn a living. That is the same argument you hear in a foreign country and the police demand a bribe with the excuse that they are not paid enough. That may be true, but it is still a bribe. In most of those countries, unlike here, it is illegal. … Let’s make this sleazy practice illegal here, too."
It's not that Foley doesn't have a point. But the name-calling ("foxes running the henhouse," "sleazy") and the implication that conflicts are equivalent to crimes such as bribery were completely unnecessary. Not only does it make legislators defensive, but it also equates conflicts of interest with bad character and crime. This undermines the cause of ethics reform.
Why would someone do this? Because it is also very popular to say things like this. It plays on the public's lack of trust in politicians, exactly the opposite of what ethics reform should do, which is increase the public's trust in government.
As someone seeking ethics reform, I have used the fox and henhouse metaphor only once in seven years of blog posts (with respect to special districts created and run by developers), and I make it clear that government ethics is not about crime.
Foley, like too many candidates and good government groups, knows that you get the public's attention when you point fingers and make loose accusations. But this is the wrong approach, and this time it backfired. Not only did legislators not like being called foxes and sleazy criminals but, according to Christopher Keating's Capitol Watch column yesterday on the Hartford Courant website, one state legislator responded to Foley's speech, "I do take that personally. I don’t appreciate being referred to as a hen in the henhouse. The Capitol is not a henhouse, and I am not a hen.” That's the first time I've heard objections to that side of the metaphor.
Robert Wechsler
Director of Research-Retired, City Ethics
---
People who have misconceptions about government ethics also tend not to be able to distinguish between different sorts of conflict situation. Here, the problem was distinguishing between pre-existing conflicts and conflicts created by events.
The person, in this case, is Connecticut gubernatorial candidate past and future Tom Foley, who testified yesterday before the state legislature's Government, Administration and Elections Committee in favor of Senate Bill 727.
Here is the operative language of the bill:
No public official, state employee or member of the immediate family of a public official or state employee shall receive one thousand dollars or more during a calendar year from (1) a state contractor that derives five per cent or more of its revenue from state contracts or from any other person other than a state employee that derives five per cent or more of his or her income from the state or any state agency, (2) an organization for which five per cent or more of its members who reside in this state are employed by the state or a municipality, (3) a lobbyist or business organization that employs one or more communicator lobbyists, (4) an individual who is restricted or prohibited from contributing to a political candidate for the office of state senator or state representative or a state constitutional office in the maximum amount permitted for individuals, or (5) an agent of an individual or entity described in subdivisions (1) to (4)...In short, the bill prohibits from state public service anyone who works for or represents, or has a spouse who works for or represents, a state contractor, a public employees union, a law firm that does lobbying, or a business that lobbies or employs the services of a lobbyist. It is not enough for someone to withdraw from matters where such a conflict exists. They simply cannot have or accept the job or contract work.
The view that conflicts must be prohibited is not all that uncommon. Many ethics codes prohibits conflicts from existing. Such a prohibition is often not even discussed, apparently because officials wrongly believe that this is what is done, this is what government ethics requires.
Confusing Types of Conflict
There are two problems here. One problem is that two types of conflict are being confused. The proposed provision is worded like a gift provision (which applies only to conflicts created by the event of the gift), and yet it also applies to the payment of a salary to a public servant who held the job when she ran for office. This is not a gift at all, but a relationship that, in certain circumstances, would be a pre-existing conflict. This conflict can easily be dealt with through withdrawal, and it carries no appearance of impropriety.
The other type of conflict could actually be construed as a gift: a job offer made to a public servant, in most cases legislators, who are given part-time pay. A lot of the jobs given to legislators are given to them because they are legislators, because they have power and connections that can be valuable to businesses, nonprofits, law firms, and unions. But such job offers should be dealt with separately, both from gifts and from pre-existing conflicts. And they should be dealt with carefully, in such a way that only those jobs that create a serious appearance of impropriety are prohibited.
How Best to Handle Job Offers
A better approach is to prohibit officials from soliciting employment offers from anyone who does business with his agency. For a state legislator or council member, this should be generalized to apply to offers from anyone who does business with the government. This approach is common in post-employment provisions. But it is less common with respect to sitting legislators, who are the principal target of this kind of rule.
An alternate approach is to require withdrawal from all matters relating to one's employer or, if the employer represents those doing business with the government, from all matters relating to the clients of one's employer. This approach effectively removes the advantage a legislator has in getting jobs with those doing business with the government.
Finger Pointing
It's not just the prohibition of a wide range of jobs that got even Foley's fellow party members up in arms. It's also the way Foley pointed his finger at legislators and accused them of crimes. According to an article in today's New Haven Register, Foley told the GAE Committee, "Part of the problem is that the foxes are running the henhouse. Our ethics rules start off as ethics light and then on appeal everyone is given a pass because people have a right to earn a living. That is the same argument you hear in a foreign country and the police demand a bribe with the excuse that they are not paid enough. That may be true, but it is still a bribe. In most of those countries, unlike here, it is illegal. … Let’s make this sleazy practice illegal here, too."
It's not that Foley doesn't have a point. But the name-calling ("foxes running the henhouse," "sleazy") and the implication that conflicts are equivalent to crimes such as bribery were completely unnecessary. Not only does it make legislators defensive, but it also equates conflicts of interest with bad character and crime. This undermines the cause of ethics reform.
Why would someone do this? Because it is also very popular to say things like this. It plays on the public's lack of trust in politicians, exactly the opposite of what ethics reform should do, which is increase the public's trust in government.
As someone seeking ethics reform, I have used the fox and henhouse metaphor only once in seven years of blog posts (with respect to special districts created and run by developers), and I make it clear that government ethics is not about crime.
Foley, like too many candidates and good government groups, knows that you get the public's attention when you point fingers and make loose accusations. But this is the wrong approach, and this time it backfired. Not only did legislators not like being called foxes and sleazy criminals but, according to Christopher Keating's Capitol Watch column yesterday on the Hartford Courant website, one state legislator responded to Foley's speech, "I do take that personally. I don’t appreciate being referred to as a hen in the henhouse. The Capitol is not a henhouse, and I am not a hen.” That's the first time I've heard objections to that side of the metaphor.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments