making local government more ethical

How to Deal with a Conflict at the Center of a Conflict of Interest Program

Update: July 17, 2012 (see end of this post)

Here's an interesting conflict situation from Concord, NH. According to a recent article in the Concord Patch, a state representative filed ethics complaints against Concord's mayor and one of the city's council members. Since the mayor and city manager had not selected members for the city's ethics board, which was established pursuant to a September 2011 ordinance, they went ahead and nominated board members after the first complaint was filed.

The complainant protested that the mayor should not have selected the members of a board that would immediately consider a complaint against him. The mayor did not withdraw his selections and turn over selection to other individuals or entities, but chose only not to vote on his nominees, although he did vote on the city manager's nominees. The council member/respondent also voted on the nominees who would hear the complaint against him. The complainant filed another complaint against the council member for having voted, but accepted the mayor's abstention as sufficient.

The complainant is wrong. It does not matter whether or not the mayor or the council member abstained. Withdrawal in this situation is not only insufficient to correct the conflict situation, it also effectively violates the ordinance that created the city's ethics program.

Here is how the ethics program was conceived. The mayor and city manager nominated board members, to be approved by the council. These individuals, and those they appoint and manage, are the principal individuals subject to the ethics board's jurisdiction. The council intended that ethics board members selected by the mayor decide cases involving the mayor, that board members approved by council members decide cases involving a council member, and that board members selected by the city manager decide cases involving the city manager.

In addition, the council decided that it would have final say in any case involving one of its members, because the ethics ordinance provides that, when a complaint is filed, the ethics board only has the power to make recommendations to the council, which is presided over by the mayor. If the council had wanted to make an exception for cases involving one of its members, it would have done so.

In other words, the mayor and council members are involved in every aspect of the ethics program, and that is the way they wanted it. They decided to place a huge conflict right at the cente of the city's conflict of interest program. It effectively ordained that any conflict involving the council is perfectly okay.

An ethics program is all about dealing responsibly with conflicts. In creating the Concord ethics program, the council dealt irresponsibly with its own conflicts and with the city manager's conflict. It did not require any of its members to withdraw from participating in the selection and approval process, or in a final decision involving one of its members.

So, the complaint against the council member for voting on ethics board nominees should be dismissed. But is that all the ethics board should do?

I think the ethics board should use this opportunity to point out that its members should never have been selected by the mayor or the city manager, and should not have been approved by the council. The ethics board should also point out that it is inappropriate for it to make recommendations to the council; instead, it should have the power to make decisions on its own, although removal from office should not be a penalty within its power.

The ethics board should recommend an alternative approach to selecting its members:  nomination by civic organizations. And it should recommend that the ethics ordinance also be changed to give it the power to make decisions without the involvement of the council, or anyone else under its jurisdiction. This will depoliticize the ethics program, give it the independence necessary to make its decisions trusted by the public, and remove the huge conflict at the center of the conflict of interests program.

Update: July 17, 2012
According to an article in the Concord Patch last week, the ethics board dismissed all the complaints, and refused to allow the complainants to say a word, about either factual matters or procedures. With respect to one complaint, the board took the position that if the council decides to allow one of its members to vote with a possible conflict, the ethics board has no jurisdiction over the matter. Considering that elected officials gave themselves complete control over the ethics process, this makes sense. But the appearance the meeting gave is that the ethics board is weak with respect to the officials it is supposed to oversee, and strong with respect to complainants. This is not likely to increase the public's trust in its officials or obtain its trust in the ethics program.

Robert Wechsler
Director of Research, City Ethics

Rick Watrous says:

Thank you for your post about the Concord ethics situation. As the citizen who filed the complaints, it is welcomed to have an informed, neutral voice weigh in on these topics.

I agree with your analysis of the ethics ordinances. Perversely they contain their own built-in conflicts of interests, giving the mayor and council an inordinate amount of power. Unfortunately this imbalance seems exactly what the mayor and council desire.

The only time the public had any input in these ordinances--a creation of Councilor St. Hilaire and his council rules committee--was in the public hearing just before the vote. I and others pointed out these inherent conflicts and other problems with the proposed ordinances. Minutes later the council approved them with no debate. The Concord public and the newly created board of ethics are now saddled with rules which do not serve them well.

While the ethics ordinance give the mayor (and city manager) power to appoint the ethics board, they also mandate removal from decision making if there is a conflict of interest. So, in this case, should not the mayor remove himself from decision making in this regard?

Article 1-6-2 of the Code of Ethics states, in part:
Officers and officials, whether appointed or elected, shall act in the best interest of the City. They shall disclose any personal financial or other interests in matters that come before them for action and shall remove themselves from decision making if they have a conflict of interest.
Article 1-6-3 Definitions states:
Conflict of Interest. A conflict of interest is defined as an actual conflict of interest when a person takes an action or makes a decision that would affect his or her financial interests, business, or those of a family member. An apparent conflict of interest is one that does not affect a person's financial interests, but does call into question his or her objectivity and independence.

Surely being the subject of a complaint calls into question a person’s objectivity in making decisions in relation to that complaint.

Robert Wechsler says:

The situation is beyond correction by withdrawal. The ethics board members would still have been selected by the mayor and would still have been approved by the council. The only way to prevent there being a conflict now or in the future is for the whole process to be started again, with the mayor not selecting board members and the council doing no more than rubber-stamping the selections of community organizations.

Here is how fragile the current selection process is, according to your argument. If any citizen did not want the mayor to select board members, all he would have to do is file a complaint against the mayor, forcing him to withdraw. But then what? Does he designate someone else to do the selection? Is selection to be done by the council (against whose members the same citizen, or another, could file complaints)? Anyone under the ethics program's jurisdiction could be prevented from selecting ethics board members by the filing of a complaint. Only individuals outside of the program's jurisdiction can select board members without there being a very easy way to remove them from the process. Therefore, the process has to be changed.

Whenever officials select themselves to be involved in an ethics program that has jurisdiction over them, there is a serious problem. One council member should not have to defend himself before an ethics board they have chosen. The whole lot of them should be required to explain at a public meeting, with unlimited public questions and speeches, why they put a big conflict of interest at the center of their conflict of interest program, making it so easily vulnerable, and why they should not remove that conflict of interest by taking the approach chosen by cities such as Miami, Atlanta, Milwaukee, etc.

If they refuse to do so, then they should be required to start the selection process over again, and you should file complaints against everyone involved, as long as they are under the board's jurisdiction.

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