making local government more ethical

Voting For or Against Is Not the Question; Independence Is the Answer

Some people incorrectly believe that a conflict of interest requires an official not to vote in such a way as to benefit himself. That is, if the official might benefit from a vote, it's okay for him to vote against it, because that shows that the official is not seeking to benefit himself.

What is odd is to see this position taken by an ethics commission. This is what happened in a June 14 advisory opinion from the Mississippi Ethics Commission. The situation was that six state legislators worked for Medicaid providers. The question was whether they could vote against expansion of Medicaid, pursuant to the new federal program.

Note this odd question:  not whether they had to withdraw from the matter, but whether they could vote a certain way on the matter.

The EC could have ignored the formulation of the question, or noted that it was inappropriate, that an EC can only advise re withdrawal, not re voting one way or another. In fact, in a "Caution Advised" section, at the end of the advisory opinion, the EC provides an accurate description of withdrawal.

But in the paragraph before advising caution, the EC writes, "The commission consistently advises public servants to fully recuse themselves from any matter which could result in a pecuniary benefit to their employer. Id. However, voting against a measure which would presumably benefit one’s employer cannot be said to violate [the basic misuse of office provision]."

In other words, because there is no withdrawal provision (which itself is a mistake), the EC takes the position that withdrawal is required only to the extent the official would actually benefit from the way he voted.

There are two principal problems with this. One, a conflict situation is not only about financial benefit. It is about having obligations that are in conflict. A legislator who has an employer who may benefit from a legislative act is caught between an obligation to the employer and an obligation to the public. If he votes against his employer's interest, that is, against his personal interest, then he may be in hot water with his employer. Withdrawal protects an official either way. He can do nothing to help or hurt his employer.

What if the official is himself the employer? An employer has obligations, too. Hurting one's business hurts one's partners, employees and, often, one's customers.

The second problem is that placing the emphasis on the way an official votes ignores all the other actions an official can take. In fact, an official can, under the EC's interpretation of Mississippi law, put together a majority in favor of an action that benefits him, and then either not vote or vote against the action, knowing it will pass anyway.

Withdrawal from participation, as the EC so clearly states after its damaging interpretation, includes much more than voting.

In this particular instance, there is another problem with the EC's interpretation:  it is seen as a political decision specific to the case at hand. This is due to the fact that EC members are political appointees. Any official who appoints EC members, and any EC member who allows himself to be appointed by someone under her jurisdiction, should be fully prepared to have every decision seen as a political decision. This undermines trust in the ethics program.

This is especially true, as in this case, when a high-level official (here, the House Speaker) requests the opinion, and when, as in this case, the EC's decision will affect a vote that really has nothing to do with conflicts of interest.

Jackson Clarion-Ledger columnist Geoff Pender called the EC opinion "one of the most unethical moves in state government recently."

The political editor for the Northeast Mississippi Daily Journal wrote that the House Speaker "turned to the Ethics Commission to try to get the votes to pass the existing program while not allowing a floor vote on expansion," and referred to one of the EC members as "a close political supporter of the speaker."

And Clarion-Ledger blogger Sam R. Hall started his blog post by recognizing part of the fallacy in the EC's opinion:  "When it comes to a conflict of interest between an elected official’s civic and professional duties, the right and ethical thing to do is to refrain from voting on a particular matter." He went on to call the opinion "an unabashedly political ruling."

Using an ethics program to win a legislative vote is inexcusable. But since the whole affair was simply about a vote, none of this will matter to the political animals who asked for or gave the advice. It will only affect the public trust, which no one seems to care much about. The Mississippi EC needs to be independent from those under its jurisdiction.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
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