The Real versus The Ideal

Officials and lawyers tend to act as if they were Platonists. That is, they talk about conflicts of interest as if they existed in a ideal form, divorced from reality.

Many government ethicists, including me, see conflicts of interest as things that exist in the real world, a world where the public is concerned that officials seek to use their office to help themselves and those with whom they have special relationships, such as family members and business associates. What is odd about the real world of government ethics is that it exists in the form not of something rock solid, but in the form of appearances. Enforcing these appearances unfortunately has to be done through the creation of ideal descriptions of conflicts in the form of laws. But preventing these appearances can go beyond these ideal forms.

Here is an example of a conflict situation that has a very concrete existence in the real world of appearances, but is hard to grab hold of in the ideal world of laws.

According to an article in yesterday's Los Angeles Times, one of the partners of a firm that lobbies the Los Angeles County government is the son of a county supervisor. One of the firm's clients, a large rental car company, was given a $1.75 million sole-source contract by the county. A county supervisor asked the auditor-controller's office to investigate this sole-source contract, and it was discovered that the county staff did an inadequate job trying to find potential bidders. The development commission that entered into the contract violated its own policy by not advertising the contract on the commission's or the county's websites, and by not going through a full bidding process. A fraudulent list of potential bidders was provided, only a third of which were actually contacted, in one e-mail, and many of these could not have bid on the contract anyway.

So here's the appearance. A major contract is not bid out properly, and there is an attempt to hide this fact. The result is a sole-source contract to a company that is represented by the son of a county supervisor, who voted for the contract. To the public, these are all the facts that matter. And these are all the facts that can be proven.

Here's the ideal. It has to be proven that the lobbying firm improperly influenced the awarding of the contract. The son told investigators "that no one from his firm had lobbied on the contract," and the executive director of the commission that awarded the contract "said he was '100% confident' the supervisor's son did not influence the process." The auditor-controller called it a case of incompetence, because she couldn't prove otherwise.

In an ideal world, when there's improper influence, officials admit to it, or at least to the fact that they don't know if someone may have influenced their staff. In the real world, officials are allowed to insist, as in this case, that there is no conflict when their son lobbies the government they run, because the son never directly lobbies the father.

In the real world, it's very hard to find signs of improper influence. Officials fear for their career if they tattle.

In the real world, every single person assumes that a son lobbies his father. This is what sons do, whether it is to go out to play with their friends after dinner or, later, to borrow the car to go out on a date. Sons lobby their fathers. And fathers listen, and help their sons.

What matters in government ethics is that, wherever officials, lawyers, and auditors may live, the public lives in the real world, where fathers help their sons. That is why, in the real world, sons should not be allowed to lobby their father's government. Sure, if the father has an ordinary job, there is only a problem when it involves the father's department or agency. But when the father is a county supervisor, the son and the son's firm should not be permitted to lobby the government at all.

If this is permitted, then any appearance of undue influence is real undue influence. No one should have to prove undue influence. The only fact that matters is the special relationship that exists.

The situation that arises from the relationship in this case cannot be cured by the father withdrawing from a matter. This one can be cured in only one of two ways:  the son agrees not to represent anyone seeking benefits from the county or the father resigns his position on the county commission.

Here is a comment to the Times article that puts the public's view pretty well:

If it walks like a duck, quacks like a duck and looks like a duck well then appearances are everything. It would best serve the Board of Supervisors to enact an ordinance to ban any form of lobbying by any family member. ... They can blame those at lower levels of their staff and shift the blame back and forth but the tax payer can see through the flip flopping. SHAME, shame, shame.

Robert Wechsler
Director of Research-Retired, City Ethics

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