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Why "When Does an Interest Become an Interest?" Is Not the Right Question
Wednesday, October 1st, 2008
Robert Wechsler
When does an interest become an interest? When an official starts
thinking about entering into a contract? When she starts negotiating
the contract? When she agrees on the details? When she actually signs
the contract? Or is this not really the question to focus on?
According to an article in the Aspen (CO) Daily News, this issue arose recently on the Aspen City Council.
The city's ethics law requires a council member to recuse himself from land-use matters within 300 feet of property he owns. A council member was negotiating on the purchase of property within 300 feet of a development that came before the council. He did not disclose this or recuse himself. When he actually purchased the property, he disclosed it and recused himself.
The city attorney said that being in negotiations would not likely constitute an interest. But he recognized that there is a large gray area, and that a public perception of a conflict can be as damaging as an actual conflict. "It's always better to declare what your situation is."
That's good advice. If the negotiations break down for good, you declare that, too, and join the discussion.
The real issue, as so often is true, does not involve legal definitions or statutory interpretation. To make a practical, responsible decision regarding an ethics issue, there is no need for a talmudic discussion of when an interest begins. If there is a question whether it is an interest or not, then it's probably time to disclose it.
The biggest problem would be if the negotiations had to be kept confidential, and others could be harmed by an official's disclosure of the negotiations. In this instance, depending on the importance of the issue vs. the importance of the business opportunity, the official could choose to back out of the negotiations, resign from his position, or recuse herself with a white lie, such as that a family member had an interest in property in the area.
An important additional consideration, which could make a white lie look black, would be whether the official would clearly benefit substantially from council action. This is because, even if not involved, it might look like the official were making use of confidential information or, if making a white lie, hiding her involvement to protect herself, not people she was negotiating with or for.
One solution, in this instance, might be to fully explain the situation in a letter to the city or county attorney, so that there will be a clear record of why you chose to recuse yourself. Such a letter should clearly state what confidential information you had and why it was not useful in your negotiations.
For more on proximity rules like the 300-foot rule in this case, see the following blog entries: Proximity Rules and City-Funded Redevelopment by Nearby Property Owners -- And How Not to Write Ethics Law.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article in the Aspen (CO) Daily News, this issue arose recently on the Aspen City Council.
The city's ethics law requires a council member to recuse himself from land-use matters within 300 feet of property he owns. A council member was negotiating on the purchase of property within 300 feet of a development that came before the council. He did not disclose this or recuse himself. When he actually purchased the property, he disclosed it and recused himself.
The city attorney said that being in negotiations would not likely constitute an interest. But he recognized that there is a large gray area, and that a public perception of a conflict can be as damaging as an actual conflict. "It's always better to declare what your situation is."
That's good advice. If the negotiations break down for good, you declare that, too, and join the discussion.
The real issue, as so often is true, does not involve legal definitions or statutory interpretation. To make a practical, responsible decision regarding an ethics issue, there is no need for a talmudic discussion of when an interest begins. If there is a question whether it is an interest or not, then it's probably time to disclose it.
The biggest problem would be if the negotiations had to be kept confidential, and others could be harmed by an official's disclosure of the negotiations. In this instance, depending on the importance of the issue vs. the importance of the business opportunity, the official could choose to back out of the negotiations, resign from his position, or recuse herself with a white lie, such as that a family member had an interest in property in the area.
An important additional consideration, which could make a white lie look black, would be whether the official would clearly benefit substantially from council action. This is because, even if not involved, it might look like the official were making use of confidential information or, if making a white lie, hiding her involvement to protect herself, not people she was negotiating with or for.
One solution, in this instance, might be to fully explain the situation in a letter to the city or county attorney, so that there will be a clear record of why you chose to recuse yourself. Such a letter should clearly state what confidential information you had and why it was not useful in your negotiations.
For more on proximity rules like the 300-foot rule in this case, see the following blog entries: Proximity Rules and City-Funded Redevelopment by Nearby Property Owners -- And How Not to Write Ethics Law.
Robert Wechsler
Director of Research-Retired, City Ethics
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