making local government more ethical

Taking the Big Ethical Step from Government Lawyer to Mayor

How can a lawyer responsibly deal with the following situation? A former city attorney, he has been general counsel to the city's sports authority, which oversees three major sports with three stadiums (and there's talk of a fourth, which the lawyer has publicly supported). The lawyer is also special counsel to the city's transit and port authorities, which the firm represents. And the firm is bond counsel to the school district.

The lawyer is running for mayor. According to the blog Musings (with links to official sites for each piece of information), the city's mayor appoints half the members of the sports authority (with council approval), five of nine members of the transit authority, and two of seven members of the port authority, with joint appointment of a third.

General counsel to the sports authority (another lawyer from the same firm has now taken this position) has been paid $640 an hour and billed $574,000 in fees from January 2007 through the end of August 2009, according to the blog Texas Watchdog (with a link to the billing).

The first thing such a lawyer should not do is what he did. Here's how he responded to questions about possible conflicts:
    When I am mayor every decision I make will be based solely on what is best for Houstonians. I am proud of the broad coalition of support I enjoy in this race, but when I am elected my only debt will be to the people of Houston.
Is it a conflict for a mayor to appoint members of a body that has hired or may hire his law firm? Would it be enough for him to resign his partnership if he was elected, when his business associates might benefit from his actions?

Yes, the mayor's power is, legally, indirect, appointing rather than guiding policy. Would it be appropriate for such a mayor to say anything concerning authorities represented by his firm? How could a mayor not speak out about major issues involving the city's sports teams, transit system, and port authority?

The Texas Watchdog blog asked Mark Rosentraub, a University of Michigan sports management professor who specializes in sports/city issues (he has a Ph.D. in Public Administration), what he thought should be done:
    “People change jobs all the time,” Rosentraub said. “But what has to be done is to look at the ethics laws, see just how he will divest himself from his law firm, and then monitor that person’s behavior. He would most likely have to recuse himself if that sports authority has business before the city council.”
Prof. Rosentraub was focused on the sports authority, but what about the other authorities? Can a mayor choose not to participate in sports, transit, and port authority issues, and not only when such issues come before the council?

And would it be enough to monitor the mayor's behavior, as Rosentraub suggests? What about monitoring his former partners and associates, who might be acting in his stead? A board's counsel has a lot of power. How can anyone monitor how much the mayor affects the behavior of his former business associates, who might try to get the authorities to implement the mayor's policies, when they are supposed to act independently?

If this lawyer is elected as mayor, can he deal responsibly with this difficult situation? Will an appearance of impropriety hang over the sports authority's activities, and possibly the other authorities' activities, as well? Would the most responsible thing be not to run at all? Can the leading partner in the government department of a firm deeply involved in city government become, effectively, a principal client, if not directly, at least in the eyes of the public?

One partial solution would be to give the council, or a committee of independent individuals, the power to select appointees to the authorities that the mayor's law firm has represented. This would be an odd sort of recusal, because usually people think of voting, not selecting, when they think of recusal. But it would send the message that the mayor understood the problem and was using his ethical imagination to deal with it as responsibly as he could.

Prof. Rosentraub also referred to the ethics laws, but this is not the sort of situation that ethics laws commonly deal with. This is a situation that requires not a legal interpretation, but ethical leadership.

The mayoral candidate has not started off well in this regard. In what he said about his possible conflicts, he misidentified the problem: it's not about who he's indebted to. It's a matter of who he'll favor and how he will benefit his business associates or work with them to benefit him. It's also a matter of appearances of impropriety.

The mayoral candidate also needs to explain why he was getting paid $640 an hour for government work. This will look to everyone like a sweetheart deal and will not, therefore, make people likely to feel he does not have his own and his firm's interests at heart. If he cannot explain the fee, he should seriously consider making restitution. Better to start out admitting a wrong than hoping the issue will go away.

Everyone says, as Gene Locke (the lawyer in this case study) said, that they're going to do what's best for the people. Government ethics is intended to make that promise more likely to be upheld and, thereby, to gain the trust of people who too often don't believe it when politicians say it.

Locke should make it clear exactly how he is going to responsibly handle this situation. Until he does, he will rightly be hounded by good government advocates and by his opposition.

Robert Wechsler
Director of Research, City Ethics