making local government more ethical

The Educational Opportunities of a Local Ethics Case in Massachusetts

A settlement in a Massachusetts ethics proceeding can be used as an educational opportunity in several ways.

According to a February 28 press release from the Massachusetts Ethics Commission, which has jurisdiction over local officials, a member of the Kingston Community Preservation Committee (CPC) participated in the making of a grant to a nonprofit organization for which she was the unpaid president. The grant was for the renovation of two boat sheds on the nonprofit's property, a river landing.

Educational Opportunity #1 - Training
According to an article in the Boston Globe, the CPC member said that she did not know that being a volunteer member of a town committee made her a “town employee” under the state ethics code. The chair of the nonprofit's board is quoted as saying, “That was news to all of us. That’s very little known.”

Commission staff only give training sessions in towns that invite them, and to officials who attend monthly in-house training sessions in Boston. Kingston apparently has not requested a training session or sent its board members to Boston, about 35 miles away. The CPC member did attend an ethics session run by the town counsel, but it was a year after the events occurred. And such sessions often make little or no effort to show how an ethics code is applicable to each sort of official or employee.

A column in the Nonprofit Quarterly notes that, after what happened, the CPC member's "two charities will be on top of their conflict of interest policies and disclosures." Hopefully, this case will get more than these two charities and this one official to look more closely at the state ethics code and the responsible handling of conflict situations.

And hopefully, this case will either make many more towns request ethics training from the state commission or get the state commission to seek funding to provide mandatory training to local officials. The commission was successful last year in getting funding sufficient to hire a second full-time training person. And last year as well, it put on its website an improved training program and a plain-language summary of the applicable ethics laws. But nothing is as good as in-person training.

Educational Opportunity #2 - Recognizing Conflicts
One of the most important things officials should get out of ethics training is the ability to recognize conflicts of interest when they and their colleagues are faced with them. In this case, even after what she's been through, the official still has a basic misunderstanding of conflicts.

According to an article on the Wicked Local Kingston website, the official "maintains that she never acted in conflict with the interests of the town but rather acted in the interest of the town with the goal of preserving its environment and history." She says that she was simply doing what the preservation committee asked her to do.

My organization, she said, "expends considerable effort and resources to protect and improve the natural environment and maintain the maritime heritage of the Jones River for Kingston, not in conflict with it. Neither I nor the organization received any private benefit from my work on the CPC.”

In other words, the official takes the position that if an official acts to help her town, she cannot have a conflict unless she or her organization financially profits from it.

This misunderstanding is extremely common. Most ethics codes restrict conflicts to those situations where an official has a financial interest in a matter. Being an unpaid nonprofit president would not give rise to a conflict in most jurisdictions.

The Massachusetts ethics code has an unusual provision that defines a conflict in terms of agency. Section 17(c) of the code prohibits a municipal employee from, "otherwise than in the proper discharge of her official duties, acting as agent for anyone other than the municipality in connection with a particular matter in which the municipality is a party or has a direct and substantial interest." That is, you cannot be on two sides of a matter, whether or not you or anyone else can financially benefit from any decision that is made.

This provision effectively recognizes three facts that are often ignored, and which the official in this case did not take into account. One is that there is more to life than money. Even if a nonprofit pays no one, the more grants it gets, the more power and prestige its leaders have in the organization and in the community.

Two, personal benefit is only one problem with conflicts. The more important problem is how the public perceives what its government is doing. When the public sees town committees giving grants to its members' organizations, it comes to think officials are using the government for their own purposes. Yes, those purposes may often be aligned with the best interests of the community, but then again, they may be aligned with the best interests of certain segments of the community (e.g., those with boats).

Three, the outcome of a matter is irrelevant to whether or not there is a conflict situation. If you're wearing two hats, there is a conflict, no matter what effect wearing two hats may have. Similarly, withdrawing from a matter may be harmful to the public interest if this changes the outcome for the worse. But the way to deal with this problem is not by ignoring the conflict, but rather by asking yourself whether someone without conflicts would be more effective in your seat on the committee.

The problem is that all this stuff has to be explained. It's not clear from the provision itself. Language about "agency" and the "proper discharge of official duties" is less clear to laypersons than it is to lawyers. Local officials are required to sign off that they've read the state ethics code, but this doesn't mean they really understand it. They need explanation and relevant examples before they can recognize conflict situations and deal with them responsibly by seeking advice or withdrawing from the matter even if they're not sure they have to. It's too bad that the CPC member did not have the benefit of the ethics commission's new plain-language summary, which includes lots of explanation and examples. Every ethics program needs a plain-language summary, but Massachusetts more than most, due to the unusual complexity of the ethics code's language.

Educational Opportunity #3 - Volunteers and Terms
This is the perfect case for the state ethics commission to use to make it clear to all local volunteers that their volunteer status is irrelevant to government ethics. They are local officials, whether paid or not. In addition, it's a perfect opportunity to make it clear to all officials that their work for nonprofits, or anyone else for that matter, can give rise to a conflict whether or not they are paid. In fact, high-level officials have many problems that arise from their association with nonprofits.

One thing that gets in the way is the term that the Massachusetts ethics code uses for government officials and employees:  "employees." The definition defines "employees" to include officials, but who reads the definition when the term appears to be clear? This is somewhat corrected by having the first section of the plain-language summary say who is considered an "employee."

Terms should be over-inclusive rather than under-inclusive, so that the definition of the term clarifies rather than adds to a term people, conduct, or activities that the term itself appears to exclude. Since board and commission members are volunteers and, therefore, do not in any way think of themselves as “employees,” this term makes them think that the ethics code does not apply to them. Definitions should never add to a term. They are there primarily for clarification.

Educational Opportunity #4 - Improper Influence and Disclosure
Here the education is not of officials, but of the state legislature. Education of the legislature is necessary because the ethics code's influence provision, and its disclosure exception, are even more problematic than the agency provision.

Section 23(b)(3) of the state ethics code prohibits a municipal official from "knowingly, or with reason to know ... act[ing] in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy her favor in the performance of her official duties, or that she is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person."

How can anyone comply with this provision? One needs to know what a reasonable person would conclude about the manner of one's actions, what influence is proper and what is improper (as well as due or undue), and what it means to "unduly enjoy" someone's favor. One also needs to be able to parse a very complex sentence, and to keep one's eyes from blurring over words such as "kinship" and "rank," which nobody uses. This provision has a serious case of legalese, which is deadly when contracted by laypersons. This language does not belong in a government ethics code.

But this isn't all. The section goes on to provide that "it shall be unreasonable to so conclude if such officer or employee has disclosed in writing to her appointing authority the facts which would otherwise lead to such a conclusion."

There are three serious problems here. One is making disclosure sufficient to correct a conflict situation, even if involves improper influence or preferential treatment. As long as you tell your appointing authority that you are going to give your organization a grant, it's fine. When what happened comes out, the appointing authority waves the sheet of paper, and all the reasonable people in the public will say that the government is to be fully trusted, because although undue influence and self-serving conduct is common, it is being privately disclosed to a public servant. No, it doesn't work like that. Disclosure is not sufficient, and secret disclosure makes it look like there's a reason it's being hidden from the public.

The ethics commission's executive director pointed out to me that such disclosures are public records, but you have to know about the conflict before you can ask for the disclosure form. Disclosure is supposed to be public, so it provides a check on officials who might otherwise fail to deal responsibly with a conflict. The only check here is that, after receiving the disclosure, the appointing authority could ask the official to withdraw. But this assumes that the conduct has not already occurred.

Two, the disclosure exception is absurd, as written. The exception is saying that it is unreasonable for a reasonable person to conclude that any person can improperly influence, etc. because the facts have been disclosed. The provision has gotten into a deep hole by using the concept of a reasonable person, so that the only way it can get out of the hole is by having the reasonable person's conclusion magically become unreasonable.

Three, the disclosure has to be in writing, even if the disclosure occurs at a public meeting and is placed on the record, which is the norm for transactional disclosure. This is what caught the Kingston official. She told her appointing authority about her position with the nonprofit, everyone on her committee knew, but she didn't put it in writing until it was too late. If disclosure is to be private and to one's appointing authority, then it should not have to be in writing. If the appointing authority is going to lie to protect her appointee, then she can just as easily type up a pre-dated letter and lie about that. If the appointing authority is not going to lie, then her testimony should be worth as much as a letter. In this case, the appointing authority was behind the official all the way. Only she chose not to manufacture a pre-dated letter. So the official has to pay $2,500. That doesn't seem right.

The executive director of the state ethics commission pointed out to me in an e-mail that Section 23(b)(3) "only deals with the appearance of a conflict of interest.  You are still required to comply with the other sections of the conflict law.  For example, under section 23(b)(2)(ii), you could not use your position to provide an unwarranted benefit to someone, which is not available to others who are similarly situated.  So, even if you file a disclosure in a certain situation to dispel an appearance of a conflict because of a private relationship you have with someone who would be affected by an action you are about to take, you are still required to act fairly and without bias in taking the action.  If you cannot, then you must abstain from acting."

This is very complicated, too complicated to provide clear guidance to non-lawyers. The distinction between appearance and reality of conflict situations is something government ethics professionals like to make, and it is important to understanding government ethics. But it is not a distinction that I think should be part of an ethics code. In addition, enforceable ethics provisions should not apply the concept of appearance. Taking appearance into account is important to the provision of ethics advice, but it should not be the basis for either enforcement or disclosure.

In fact, the plain-language summary of this rule (see below) does not provide the information the executive director provided to me so clearly. It does not say that the disclosure does not cure other rules; in fact, the example it gives makes it appear that it cures a very basic conflict situation. It also does not say that the disclosure must be filed before official action is taken, as the executive director told me. Here is the plain-language summary:
A municipal employee may not act in a manner that would cause a reasonable person to think that she would show favor toward someone or that she can be improperly influenced. Section 23(b)(3) requires a municipal employee to consider whether her relationships and affiliations could prevent her from acting fairly and objectively when she performs her duties for a city or town. If she cannot be fair and objective because of a relationship or affiliation, she should not perform her duties. However, a municipal employee, whether elected or appointed, can avoid violating this provision by making a public disclosure of the facts. An appointed employee must make the disclosure in writing to his appointing official.

Example where there is no violation : A developer who is the cousin of the chair of the conservation commission has filed an application with the commission. A reasonable person could conclude that the chair might favor her cousin. The chair files a written disclosure with her appointing authority explaining her relationship with her cousin prior to the meeting at which the application will be considered. There is no violation of Sec. 23(b)(3).
Conclusion
The official had a conflict and should have sought advice about it. But without ethics training and in the misbelief that as a double volunteer she had no conflict, she did not recognize that she had a conflict.

In addition, as a committee member, she had the reasonable misbelief that she was not an "employee" and, therefore, not subject to the state ethics code. The term should be changed to "official or employee." Even the new online ethics course refers to the government as the "employer." This sort of shorthand is confusing for board and commission members.

The language of the relevant ethics provisions is such that had she read them, she still might not have recognized that she had a conflict or even that she needed to disclose her conflict in writing, or if so when (because all that legalese may not have convinced her that she had a conflict). She did disclose her relationship with the nonprofit, but didn't put it in writing in time, at least as the provision has been interpreted.

A great deal can be learned from this case, by local officials, especially volunteers; by nonprofits that seek benefits from local governments; and by the state ethics commission and the state legislature, which can improve the law and increase the budget for ethics training, so that this sort of thing is less likely to happen again. Steps have recently been made, but as long as the language of the ethics code is so difficult, it is an uphill battle. It shouldn't be a battle at all.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
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