Two Case Studies

Here are two interesting local government ethics case studies from matters in the news this week.

A Job Can Effectively Be a Gift
According to an article in the Spokesman-Review, a Spokane council member requested an advisory opinion from the city's ethics committee after his successful push to change city regulations to allow bus bench advertising was questioned. At the time, the council member was working as an architect on an apartment complex for the co-owner of a company that sells bus bench advertising. The council member argued that he's supported bus bench advertising for years.

This set of facts raises at least three questions. Should an official recuse himself on a matter when he is doing a completely unrelated job for a company interested in the matter? Should an official refuse a job for a company owned by someone who has or is likely to have business before his board? What obligation do citizens have not to hire board members when they have or are likely to have business before their board?

There is certainly no direct conflict here. The council member received no financial benefit from the bus bench advertising decision. Nor is there an ordinary indirect conflict, because neither his family nor a business associate received a financial benefit from the decision. So the question is, Is there a conflict when a client gets a benefit, even though the work done has nothing to do with the matter or even with the company receiving the benefit?

If the council member were a doctor, one would be inclined to say there is no conflict. Advising an interested party about his heart problems has nothing to do with bus bench advertising and involves a tiny portion of the doctor/council member's income.

But an apartment building job taken by an architect represents a large portion of his income. So it's a more difficult question.

Now put yourself in the client's shoes. A bill that would give you a lot more bus bench advertising business is up for consideration before the council. You want a strong advocate on the council for the bill, there's an architect on the board, and you need to hire an architect for a project you are working on that has nothing to do with advertising. So you hire the council member rather than another architect. You give up nothing, and the council member gets an extra job. And yet there's no gift involved, because presumably the architect is being paid the going rate. And the design job is so unrelated to bus bench advertising, no one will notice or care.

The public will look at the situation from this point of view. To the average person, there is a council member and a client, and not unrelated businesses. The client, who can make a lot of money out of a bill, hires the council member. This looks like a quid pro quo, whether or not it actually is. Even the fact that the council member isn't changing his position on the issue doesn't change the fact that the client wanted a strong advocate, not just a vote.

This issue usually arises with lawyers rather than architects. Business people have lots of law business to hand out, so why not hand it out to people who can help you politically? It's not a gift according to ethics code gift provisions, and the lawyer is not representing the client in a related case or before his own board, which would clearly not be allowed. It's the perfect way to help out someone who can help you out, without spending a dime, assuming the council member is competent.

And yet the council member should recuse himself when any matter involving his client comes up, because the appearance of impropriety is so strong, and rightfully so. In fact, a council member should not even take a job from someone with business before the council, no matter how unrelated the job is. It's better to work for people with no business before you. It's one of the many sacrifices that need to be made by officials, especially important elected officials.

But there are many instances where the board or council member will not know that the person offering him work will have business before the board. This is one reason why those who do business with a local government or whose business is affected by decisions of its boards and commissions should not be allowed to offer work to elected officials whose decisions could affect them. The burden should not be exclusively on the official.

How to Determine Whether Staff Research Was Intended for Election Purposes
From an Electric City blog post:  "In response to a question at a City Commission Forum, a [city commission candidate] stated that City tax receipts have increased by 44% in the last 5 years. The two incumbent Commissioners ... took issue with this assertion. A few days later, City Staff provided the City Commission with a response to the assertion."

The issue is, should city commissioners use their staff to research matters that arise in an election (if indeed they requested the research)? The most important problem is determining whether the purpose of the memo was to help with the two incumbent commissioners' re-election or just ordinary commission business. Gregg Smith, who wrote the blog post, shows how to think this problem through. I share his analysis in compressed form below:

First, by its own terms, the memo is responsive to a question that was asked of political candidates at a political function.

Second, it is not a general, public refutation of assertions made at the forum, but was instead provided personally to the City Commissioners.

Third, the memo does not address any issue currently pending before the City Commission. It was not done in the ordinary course of Commission business.

Fourth, it puts challengers at a disadvantage when public money is spent to help their opponents make their political case. This is a question of fairness.

Robert Wechsler
Director of Research-Retired, City Ethics

---