The Class Exception

No, the class exception does not except classy people from ethics codes. It excepts people from recusing themselves when the interests they have that would be affected by an act or decision are similar to a broad class of people. The biggest class is, of course, taxpayers. Municipal officials can vote for budgets even though their taxes are affected by it. Other classes excepted without controversy include homeowners, renters, members of a pension plan, and business owners. But the smaller the class, the more people disagree over whether an official's interest creates a conflict requiring withdrawal and recusal. For example, many people might live in the neighborhood of a development, but how close is too close? The closer you get, the smaller the class of neighbors is.

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Another factor that can affect the application of the class exception is whether or not the official is directly affected by an act or decision. For example, if an official works for a company that is affected by a decision, but the decision itself would not provide the official with a direct benefit or harm, then the official is generally allowed to vote on the matter.

This has recently become a controversial issue in Rhode Island. In September, Governor Carcieri wrote the state ethics commission, which has jurisdiction over both state and municipal officials, 'Every year, paid union representatives vote on legislation ' including the state budget ' that directly impacts their employers. Criminal attorneys vote on changes to the criminal code. And insurance brokers vote on bills that would change how we regulate the insurance industry. Voting on a bill that directly impacts the person or business that is signing your paycheck is an obvious conflict of interest.' He suggested a clear ban on voting by legislators 'on any measure that affects a business or industry from which the legislator (or a member of his or her immediate family or business associates) receives more than a minimal amount of his or her income.' (In Rhode Island, the class exception rule already applies to an official's relatives and business associates.)

The Rhode Island Civil Liberties Union opposes the governor's proposal on the grounds that it would affect voters' ability to elect individuals they feel will best represent their interests, according to an article in the Providence Journal. Anyone with firsthand knowledge of a matter, the ACLU contested, would not be able to participate in it, and this knowledge is one of the strengths of a part-time legislature.

Any honest look at this problem would note that expertise is one of its strengths and one of its weaknesses, because special expertise is usually accompanied by special interests.

There are several difficult questions involved here. One state representative, for example, focused on how unfair it is to have union representatives (as opposed to union members) participating in union matters as legislators. Union representatives are able to share their expertise with less knowledgeable legislators, but their apparent favoritism makes even other politicians see their participation as unfair. Legislators more inclined to support unions will feel the same way about the participation of employees of businesses, especially in specialized areas. And the more officials work for special interests and participate in decisions in areas of the special interests' concerns, the more citizens will feel it's all unfair and that politics is a rigged system.

In the ethics commission's discussion of the issue, a staff attorney noted that limiting the class exception would have more effect on state than on local budgets, because most people have family that are affected by the state budget.

The ethics commission chair tried to find a compromise, saying that conflicted legislators should be able to vote on the floor, but not on committees. Another commissioner said that that might eliminate 40% of the legislature from being involved with the creation of the budget, suggesting that, to solve this problem, only people in the immediate household should be considered, not all relatives. He said that people vote for representatives despite their relationships with people affected by the budget, but another commissioner rightly noted that the public rarely knows about these relationships.

The balancing of expertise with conflicts of interest is more difficult with respect to state legislators and council members, because they are elected officials. They have constituents to represent (unlike board and commission members). They can be prevented from sitting on committees that deal directly with their industries, but would it be in the public interest, for example, to have only non-lawyers on a judiciary or ordinance committee?

There are no easy answers in this sort of balancing. The only thing one can ask is that the issue be considered on an ongoing basis; that it be dealt with honestly, not focusing exclusively on one side of the scales or the other, but weighing both sides together; and that all interests be disclosed and, when there seem to be conflicts, discussed openly and responsibly.