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The Perils of Prohibiting Officials from Having Conflicts of Interest
Monday, September 9th, 2013
Robert Wechsler
One of the most frequent mistakes in the drafting of a government
ethics code is prohibiting officials from having conflicts of
interest. There is nothing wrong with an official having a conflict
of interest. There is only something wrong with an official creating
a conflict or failing to deal responsibly with a pre-existing
conflict. As can be seen in Massachusetts, where such a prohibition has made big waves, the prohibition of having a conflict can cause serious problems.
Those who pass prohibitions on having a conflict unknowingly go beyond what is necessary, or even desirable. The news media follows their lead, saying things like “The mayor has been accused of a conflict,” turning every minor conflict situation into a scandal, often before it can be handled responsibly. Officials become defensive at the suggestion they have a conflict, rather than disclosing conflicts when they arise and dealing with them responsibly. And many people cannot become officials without making unnecessary sacrifices.
In this way, prohibiting conflicts limits who can be an official, turns officials against government ethics, and prevents the open discussion of ethics issues. Officials become afraid even to ask for advice, or they make sure they ask someone who will give them the answer they want, so that they have a good defense (or so they think) if their conflict becomes public.
And yet such prohibitions continue to exist. When there is a competent ethics program, the commission keeps providing waivers or exemptions to allow officials to have conflicts in particular situations. But a commission cannot simply ignore such a prohibition.
In 2004, Massachusetts' prohibition on having a contract was alleviated somewhat by allowing the state ethics commission (which has jurisdiction over local officials) to promulgate rules that grant particular "exemptions" to this prohibition and others, such as the gift ban. To date, the EC has promulgated thirteen exemptions to the conflict prohibition alone. This is a terrible waste of its resources (see my blog post on another Massachusetts contract situation).
On September 5, a group of very high-class "formers," as well as the executive director of Common Cause Massachusetts and a Roosevelt, announced a petition to the state EC, requesting a fourteenth exemption that would allow a state senator, who wants to run for governor, to keep his interest in an airline that has a contract with a state-run airport (see my recent blog post on the situation). The "formers" include former judges, state attorney generals, U.S. attorneys, and EC members. This is a terrible waste of their time.
What is most upsetting about their petition, however, is that, after a critical sentence or two, it accepts the prohibition on having conflicts of interest, and seeks only an extremely narrow exemption from it. These luminaries could have requested the EC to recommend striking the prohibition altogether.
The result is that the petition looks more like a favor to the senator than anything else, an attempt to let him run for governor next year without giving up his business. In other words, it politicizes the ethics exemption system.
The cover letter to the petition acknowledges that some petitioners are not happy with the limited request. "Some petitioners may prefer a broader regulation that applies to non-elected state employees ... Others believe that new legislation is warranted." I agree with the "others" who want new legislation.
A high-profile situation like the gubernatorial candidate's should be used for much more important purposes than simply making a narrow exemption to a rule that has no place in an ethics code. Massachusetts' ethics program is much better than its ethics code. There is no reason to accept an inappropriate ethics provision as a fact of life.
This is a good time for the state legislature, with valuable input from the ethics commission and others, to take a fresh look at Massachusetts' ethics code. This provision is not the only one that is problematic (see my blog post on another problematic provision). And the language throughout the code deserves reconsideration.
Robert Wechsler
Director of Research-Retired, City Ethics
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Those who pass prohibitions on having a conflict unknowingly go beyond what is necessary, or even desirable. The news media follows their lead, saying things like “The mayor has been accused of a conflict,” turning every minor conflict situation into a scandal, often before it can be handled responsibly. Officials become defensive at the suggestion they have a conflict, rather than disclosing conflicts when they arise and dealing with them responsibly. And many people cannot become officials without making unnecessary sacrifices.
In this way, prohibiting conflicts limits who can be an official, turns officials against government ethics, and prevents the open discussion of ethics issues. Officials become afraid even to ask for advice, or they make sure they ask someone who will give them the answer they want, so that they have a good defense (or so they think) if their conflict becomes public.
And yet such prohibitions continue to exist. When there is a competent ethics program, the commission keeps providing waivers or exemptions to allow officials to have conflicts in particular situations. But a commission cannot simply ignore such a prohibition.
In 2004, Massachusetts' prohibition on having a contract was alleviated somewhat by allowing the state ethics commission (which has jurisdiction over local officials) to promulgate rules that grant particular "exemptions" to this prohibition and others, such as the gift ban. To date, the EC has promulgated thirteen exemptions to the conflict prohibition alone. This is a terrible waste of its resources (see my blog post on another Massachusetts contract situation).
On September 5, a group of very high-class "formers," as well as the executive director of Common Cause Massachusetts and a Roosevelt, announced a petition to the state EC, requesting a fourteenth exemption that would allow a state senator, who wants to run for governor, to keep his interest in an airline that has a contract with a state-run airport (see my recent blog post on the situation). The "formers" include former judges, state attorney generals, U.S. attorneys, and EC members. This is a terrible waste of their time.
What is most upsetting about their petition, however, is that, after a critical sentence or two, it accepts the prohibition on having conflicts of interest, and seeks only an extremely narrow exemption from it. These luminaries could have requested the EC to recommend striking the prohibition altogether.
The result is that the petition looks more like a favor to the senator than anything else, an attempt to let him run for governor next year without giving up his business. In other words, it politicizes the ethics exemption system.
The cover letter to the petition acknowledges that some petitioners are not happy with the limited request. "Some petitioners may prefer a broader regulation that applies to non-elected state employees ... Others believe that new legislation is warranted." I agree with the "others" who want new legislation.
A high-profile situation like the gubernatorial candidate's should be used for much more important purposes than simply making a narrow exemption to a rule that has no place in an ethics code. Massachusetts' ethics program is much better than its ethics code. There is no reason to accept an inappropriate ethics provision as a fact of life.
This is a good time for the state legislature, with valuable input from the ethics commission and others, to take a fresh look at Massachusetts' ethics code. This provision is not the only one that is problematic (see my blog post on another problematic provision). And the language throughout the code deserves reconsideration.
Robert Wechsler
Director of Research-Retired, City Ethics
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