Indirect Conflicts Involving Appointments

Election time makes public many ethics situations that make valuable case studies. One involves Florida gubernatorial candidate Rick Scott.

According to an article in the Naples (FL) News, there is reason to believe that Scott's company is being or will soon be investigated by the Florida Department of Health (a complaint has been filed). The investigation relates to practices at a series of walk-in medical clinics Scott owns. An indirect conflict would arise if the candidate was elected and appointed a new head of the health department.

To his credit, Scott has said exactly how he would handle this matter. He said, “I’d recuse myself from any involvement. I’m going to appoint the head of the position, but I’m not going to be involved in any decisions.”

The first question that came to my mind is, what decisions would a governor be involved with other than appointing the head of the department, who would make all the necessary decisions? In other words, is the candidate's willingness to withdraw from involvement in decisions (which would involve a direct conflict) a red herring?

The second question is, considering that the new head of the health department would likely decide whether to pursue, or continue pursuing, the investigation, not to mention how it would be pursued and what action would be taken based on the investigation report, would appointment of this department head be seen by the public as prejudicing the matter in favor of the governor? Would any decision not to pursue the investigation be respected by the public?

This is yet another sort of indirect conflict, where a possible benefit to the official would accrue not from directly making a government decision, but from appointing the person who would make the decision. It's unlikely that the public would view the indirect conflict any differently than the governor's direct involvement in the matter, if that were possible.

The candidate, if elected, would have the opportunity to deal responsibly with this matter in a way that a sitting governor would not. If the department head had already been appointed before the complaint was filed, it would be too much to ask the governor to fire the department head in order to make everything look above board. The best solution would be to have an independent investigator appointed by a neutral party, such as a judge.

But in the current situation, there is nothing that says that a new department head must be appointed, assuming the current one would be willing to stay in office. A health department is not an exceptionally political place. So the governor's sole involvement in the matter could be prevented by putting off the appointment.

A third question came to my mind: Is having new administrations appoint new department heads a matter of policy or a matter of patronage? But that's a question for a different post.

The same thing would be true with a local government ethics commission. If a complaint was filed against a mayoral candidate, the candidate was elected, and the term of an EC member's term had come to an end, the mayor should either renew the member's term or let the member remain in office by not replacing him until the matter involving the mayor comes to an end.

Of course, the best thing is not to have a mayor involved in selecting EC members, since complaints are generally filed against mayors, their appointees, and their political allies.

Robert Wechsler
Director of Research-Retired, City Ethics

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