The Need for Sensitivity

People (including government officials) usually talk about conflict situations as if they involved the public (represented by do-good ethics types) trying to get public servants (who are represented as corrupt) to sacrifice either their family, friends, or business opportunities or their duty to do their jobs as representatives or officials.

This is sad, because this leads people to ignore the other side to conflict situations:  the effect living and dealing responsibly with conflict situations can have on public servants. Being conflicted means having to choose among obligations. This isn't easy for anyone, and it can have serious consequences. One goal of government ethics is to make it easier for public servants, to take some of the burden of having conflicts off their shoulders through clear rules and professional ethics advice.

This is why I was so happy to read a New York Times editorial today, regarding Mary Jo White's nomination as head of the Securities and Exchange Commission (SEC). The editorial suggests questions Ms. White should be asked. One of the questions involves her husband. It shows a sensitivity rarely seen in public debate:

She must also address nonfinancial conflicts. Since her husband is also a top corporate lawyer, decisions made in the public interest at the S.E.C. will inevitably strain the couple’s professional and social relationships. Why is she willing to take that risk?

Six weeks ago, on the CNN Money website, Eleanor Bloxham, the CEO of  the Value Alliance and Corporate Governance Alliance, dealt with this issue at more length. Bloxham says what the editorial said (someone there likely read her column) and then goes further:

Lawyers may pride themselves on their objectivity and their ability to move from the public to private sector and back again. But those who do their public jobs well are more likely to find there are no bridges back.

Bob Monks, former partner at law firm Goodwin Proctor, says he remembers a conversation he had at the Getty Foundation offices with former SEC Chair Harold Williams. Williams told Monks that following his SEC service, he knew a few people would be offended by his advocacy for governance reforms and that he would not be invited to join new boards, but he never imagined that he would not be invited to rejoin the boards on which he had previously served. Harold Williams told me that, in fact, this was the case in the end. Is White willing to face the ostracism that would come from advancing the public's cause?

A Legalistic Response
What has White's husband done to help deal responsibly with White's conflict situation? A typically legalistic act, of course. According to an article in the American Lawyer, her husband has agreed to "convert from equity to nonequity status at Cravath [a huge law firm based in New York] upon her confirmation." This means that he won't get a partnership percentage, but will instead be paid a salary and a performance bonus. A legal difference, yes, but can anyone point to a real difference or an appearance difference in terms of relationships and obligations?

Why Sensitivity?
Why should anyone be concerned about the strain on a couple's professional and social relationships, or the effect becoming a public servant may have on someone's career? One is compassion. It's not easy on someone to deal responsibly with her conflict situations, especially when they involve family.

Another reason is that, for most of us, our family, professional, and social relationships, and our career, are more important than anything. It's not as if White was an ideological crusader willing to make other concerns secondary to her cause. When something as important as one's future, one's spouse's future, and one's relationships are possibly placed in jeopardy, one cannot be expected not to step back from stepping on people's feet. And one certainly can't expect anyone to see every bit of unwillingness to pursue a case or make the toughest regulation as anything other than a compromise intended to make things easier on oneself.

Relationships are what conflicts of interest are all about. They're not about laws or obstacles or catching people. They're about what we know is important and what must not be allowed, as far as possible, to get in the way of fully representing the public interest.

Conflicts cannot be managed in a purely legal way. They can only be managed by owning up to the full range of risks, discussing them with a neutral, professional ethics adviser and, when necessary, making serious sacrifices rather than creating a situation where the public will see you as acting for yourself, your family, or your clients instead of for them.

Sometimes there is too high a possibility of ongoing conflict situations or appearances of impropriety for a conflict to be managed responsibly. A position must either not be taken or must be given up.

Any decision White makes will be difficult for her. That is what a conflict situation is. It is important to be sensitive to the situation she is in. But she also needs to be sensitive to the public's situation. Having her husband be a nonequity employee of his law firm shows very little sensitivity. She needs to focus on the question, Which decisions of hers will likely be most damaging to the public's trust in its government?

Robert Wechsler
Director of Research-Retired, City Ethics

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