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Putting Government Officials and Employees into Conflict Situations
Friday, October 5th, 2012
Robert Wechsler
It was very refreshing to hear Ann Arbor council member Steven
Kunselman, in an
interview with Jeanine DeLay of A2Ethics, an Ann Arbor-based
ethics organization, talking openly, honestly, and intelligently
about some local government ethics situations. The two
situations he spoke about are situations that are too often
ignored: situations where a high-level official puts
subordinates or lower-level allies into conflict situations.
Both situations involved mayoral appointments. The first was the appointment of city staff members to a transportation authority. Kunselman, a former employee and administrator for another local government, considered it unethical to place city employees in a position where they could be seen to be beholden to the mayor's policies and where they would have obligations to two different levels of government and two different constituencies (city residents and residents of the area served by the authority).
Coming from an administrative background, Kunselman emphasized something that is rarely heard in government ethics circles. He said that when city staff are part of a board that has problems, it is difficult to trust the information they provide to policy makers such as himself. This is a different sort of trust issue – an internal trust issue – but no less important, because representatives need trustworthy information on which to base their decisions of what is in the public interest. Biased information can be damaging, and a lack of trust within government can hamper its effectiveness.
The second situation involved the mayor's appointment of council members to a development authority. Doing this makes it hard for the council members to know whether they are supposed to represent the city or the development authority. Not only does this put council members in a conflict situation, but it also leads to a "determined outcome," that is, the council members are seen as being selected to put through the mayor's policies on a body that is supposed to make independent decisions.
These are not typical conflicts, because personal interest is not involved. But these are classic instances of wearing two hats, of being conflicted about where one's obligations lie. The difference is that one of the hats is thrust upon the official or employee by the mayor. Therefore, added to the conflict is the misuse of the power of the mayoral office in a way that does not take into account the effect the appointment has on others or on the public trust.
This is a difficult conflict situation to deal with in an ethics code. There are incompatible office provisions, but these are infrequent, because there is a common law prohibition against officials holding incompatible offices. But this law is limited to situations where there is direct oversight of one position by another, or where the powers and jurisdiction are such that there are significant problems with conflicting duties and loyalties. With state and regional offices, this law is usually enforced by the attorney general. But AGs have a lot of room for interpretation, because the common law provides only limited guidance. With local offices, it is usually not clear who has the authority to enforce this law. So it is usually self-enforced.
In Ann Arbor, it has been the council itself that makes the decision. Kunselman feels this is appropriate. But especially when council members themselves are involved, this is not a good way to maintain the public's trust. Most council members are not going to want to take a public stand against the mayor's authority to make appointments, especially of council members. And they should not be put in that position.
An ethics officer or ethics commission is in a much better position to consider the arguments for and against the propriety of appointments that give officials and employees an extra hat to wear.
This is where Kunselman's understanding of government ethics shows its limits. He believes that self-enforcement is fine, except when it allows for the removal of a council member by peers who may not like him. In fact, he doesn't even acknowledge the concept of an ethics program. He talks only of ethics policies and ethics pledges. He considers an official's oath of office an ethics pledge, because it requires him to say that he will follow the law. He feels that state laws are sufficient, even though Michigan's local ethics laws are limited and do not provide for training, independent advice, or enforcement.
He says that, "if there is a community that has drafted the Golden Rule, then we should be copying it. But I don't think there is a community that has drafted the Golden Rule." The interviewer, on the page that includes the recorded interview, wrote in response to this statement:
Robert Wechsler
Director of Research-Retired, City Ethics
---
Both situations involved mayoral appointments. The first was the appointment of city staff members to a transportation authority. Kunselman, a former employee and administrator for another local government, considered it unethical to place city employees in a position where they could be seen to be beholden to the mayor's policies and where they would have obligations to two different levels of government and two different constituencies (city residents and residents of the area served by the authority).
Coming from an administrative background, Kunselman emphasized something that is rarely heard in government ethics circles. He said that when city staff are part of a board that has problems, it is difficult to trust the information they provide to policy makers such as himself. This is a different sort of trust issue – an internal trust issue – but no less important, because representatives need trustworthy information on which to base their decisions of what is in the public interest. Biased information can be damaging, and a lack of trust within government can hamper its effectiveness.
The second situation involved the mayor's appointment of council members to a development authority. Doing this makes it hard for the council members to know whether they are supposed to represent the city or the development authority. Not only does this put council members in a conflict situation, but it also leads to a "determined outcome," that is, the council members are seen as being selected to put through the mayor's policies on a body that is supposed to make independent decisions.
These are not typical conflicts, because personal interest is not involved. But these are classic instances of wearing two hats, of being conflicted about where one's obligations lie. The difference is that one of the hats is thrust upon the official or employee by the mayor. Therefore, added to the conflict is the misuse of the power of the mayoral office in a way that does not take into account the effect the appointment has on others or on the public trust.
This is a difficult conflict situation to deal with in an ethics code. There are incompatible office provisions, but these are infrequent, because there is a common law prohibition against officials holding incompatible offices. But this law is limited to situations where there is direct oversight of one position by another, or where the powers and jurisdiction are such that there are significant problems with conflicting duties and loyalties. With state and regional offices, this law is usually enforced by the attorney general. But AGs have a lot of room for interpretation, because the common law provides only limited guidance. With local offices, it is usually not clear who has the authority to enforce this law. So it is usually self-enforced.
In Ann Arbor, it has been the council itself that makes the decision. Kunselman feels this is appropriate. But especially when council members themselves are involved, this is not a good way to maintain the public's trust. Most council members are not going to want to take a public stand against the mayor's authority to make appointments, especially of council members. And they should not be put in that position.
An ethics officer or ethics commission is in a much better position to consider the arguments for and against the propriety of appointments that give officials and employees an extra hat to wear.
This is where Kunselman's understanding of government ethics shows its limits. He believes that self-enforcement is fine, except when it allows for the removal of a council member by peers who may not like him. In fact, he doesn't even acknowledge the concept of an ethics program. He talks only of ethics policies and ethics pledges. He considers an official's oath of office an ethics pledge, because it requires him to say that he will follow the law. He feels that state laws are sufficient, even though Michigan's local ethics laws are limited and do not provide for training, independent advice, or enforcement.
He says that, "if there is a community that has drafted the Golden Rule, then we should be copying it. But I don't think there is a community that has drafted the Golden Rule." The interviewer, on the page that includes the recorded interview, wrote in response to this statement:
In our view, the best place to get trustworthy information on good city ethics policies is by examining the work of a nonprofit, local government ethics group called City Ethics. City Ethics research director, Robert Wechsler is — if not the gold standard and the 'Golden Rule' too — then a gold mine of information about local government ethics matters in the U.S.Hopefully, this will open Kunselman's eyes, and others', to the fact that, even though there is no golden rule of government ethics, there are good, comprehensive, independent local government ethics programs (even if not in Michigan), and at least one place to find information about them. Thanks to A2Ethics for making this valuable interview available to the public at large.
Robert Wechsler
Director of Research-Retired, City Ethics
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