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Conflict of Interest Provisions

Patronage

Posted Wed, 2006-11-29 07:44

Patronage involves a conflict between one's obligation to the public to hire the most competent person for each job, and one's political obligation to reward those who help oneself or one's colleagues get elected. Most ethics codes ignore this conflict. Please share your thoughts on its inclusion, as well as your experiences with patronage and attempts to control it.

100(10). Patronage

No official or employee* may promise an appointment or the use of his or her influence to obtain an appointment to any position as a reward for any political activity or contribution.

Comment: As has been shown so skillfully in Chicago, patronage involves both promises of jobs in return for political activity, and the threat of losing jobs in return for political activity, so that patronage continues on forever. Even the Shakman Decree of 1983 did not put an end to the Chicago patronage system: it just went underground. It was twenty years before the new version, based on fraud, was taken on.

Most ethics codes do not include patronage provisions, although many do prohibit asking subordinates to participate (however, this can occur without implicit requests or threats). Patronage involves the most basic conflict of interest in government: the conflict between holding on to power and acting in the public interest. A city government based on patronage cannot have a truly ethical environment, because most of its officials and employees are there on the basis of a quid pro quo/special consideration relationship, which is inconsistent with ethics.

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Political Solicitation

Posted Wed, 2006-11-29 07:39

This is the place to discuss how to deal with the situation where an official puts pressure, directly or indirectly, on subordinates to participate in political campaigns. This provision also deals with the problem of political activity at work or with city funds or facilities. Municipal officials and employees have the right to participate in political activities, but they also have an obligation to separate this from their municipal responsibilities. Some city administrations have based their power on pressuring subordinates into working for their re-election. Please share your experiences with this sort of conflict, and with attempts to control it.

100(9). Political Solicitation

An official, employee, or municipal candidate may not knowingly request, or authorize anyone else to request, that any subordinate* or potential future subordinate participate in an election campaign or make a political contribution. Nor may he or she engage in any political activity while on duty for the city, with the use of city funds, supplies, vehicles, or facilities, or during any period of time during which he or she is normally expected to perform services for the city, for which compensation is paid.

Comment: Political solicitation of subordinates by an official fosters the appearance, if not the reality, of coercion. The word "knowingly" here means that neither an official nor a campaign committee is required to cull the names of municipal officials from voter registration lists it mails to. However, a targeted mailing to municipal officials is prohibited.

Similarly, candidates are barred from soliciting from appointed officials and employees who may fear reprisal, such as being fired, if they refuse to aid the candidate's campaign, even if they do not currently work under that candidate.

Note that this code does not restrict voluntary political contributions or political activity by any official or employee.

Some municipalities may wish to add a bar on soliciting from persons or entities that have sought or received a financial benefit from the municipality within the previous twenty-four months.

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Confidential Information

Posted Wed, 2006-11-29 07:33

This is the place to discuss how best to deal with the problem of an official using confidential information for his or her own gain, or disclosing confidential information for others' gain. A principal issue is how to define "confidential information."

100(8). Confidential Information

An official or employee*, a former official or employee, a contractor* or a consultant* may not disclose any confidential information obtained formally or informally as part of his or her work for the city or due to his or her position with the city, or use any such confidential information to further his or her own or any other person or entity's personal* or financial interests*.

Comment: Some cities will want to define "confidential information" more exactly. Here is possible definition language, based on the IMLA Model Code:

"Confidential information" means information obtained in the course of holding public office or employment, or as a contractor to the city, which is not available to members of the public and which the official or employee* is not authorized to disclose, except to designated individuals or bodies, including written and non-written information. When such information is also available through channels open to the public, officials and employees* are not prohibited from disclosing the availability of those channels.

The IMLA Model Code states explicitly, in its confidential information provision, that an ethics commission is, effectively, considered a designated body.

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Representation and Appearances

Posted Tue, 2006-11-28 16:41

This is the place to discuss how to prevent the conflicts that arise when a city official represents (or appears for) someone before the city or against the interests of the city. The difference between representation and appearance is explained in the comments below. Please comment on this division, and share your experiences and thoughts regarding this area of conflicts.

100(6). Representation

An official or employee* may not represent any other person or entity before the city, nor in any matter not before the city, but against the interests of the city. However, it is acceptable for elected officials to represent constituents without compensation in matters of public advocacy.

Comment: The second sentence of this subsection recognizes that officials are elected to serve their constituents. Thus, for example, when a resident complains to a council member that the public works department blocks the resident's driveway with snow, a council or board member must be able to pursue that complaint with the proper city authorities.

Some cities go into more detail and cover more people in their limitations on representation. Such provisions include the representation by business associates of officials and employees, and acting as an expert witness before the official or employee's board or agency.

100(7). Appearances*

An official or employee* may not appear* before any city department, agency, board or commission, except on his or her own behalf or on behalf of the city. Every time an official or employee appears before the meeting of any municipal body, or when he or she writes a letter to the editor or other publicly distributed writing, he or she is required to disclose before speaking or clearly on the writing whether he or she is appearing in an official capacity or as a private citizen. If the speech or writing is in response to criticism or other communication directed at or regarding his or her official role, the official or employee may respond only in his or her official role.

Comment: Subsections 6 and 7 appear to overlap, because one who represents another usually makes an appearance. However, it is much more clear when an "appearance" has been made than when there is a "representation" relationship, so including both makes it more clear what conduct is being prohibited. Also, subsection 6 includes representation of private interests outside of the city's own boards and departments, when it is against the interests of the city, usually but not exclusively when the city is a party to business or a proceeding. And subsection 7 deals with appearances where the official is representing himself or herself, but it is not clear which hat the official is wearing.

Again, the general rule is that if others see your relationship with a person or entity as "representation," then you should not do it, because it would be perceived as a conflict with your principal role of representing the city. Similarly, if your appearance at a meeting or in writing does not appear to be in the city's interest, you should not appear.

Why are officials and employees restricted from appearing before boards or agencies other than their own? Because restricting only appearances before your own board or agency would, for example, allow a code-enforcement official or the city attorney to represent private clients before the city planning board, because those officials are not members of that board. It would be very difficult to list every possible instance where an appearance before other boards and agencies would be inappropriate. When there is no such conflict, an official or employee should obtain a waiver from the Ethics Commission pursuant to 213.

Some municipalities may go beyond actual representation, and include assistance or legal assistance, with an exclusion for representation or assistance in the performance of the official or employee's official duties.

For volunteers, towns might want to limit restrictions on representation and appearances to their own board or commission, especially those on boards where the opportunity for conflict elsewhere is very small, such as the library board. A list of boards where this exception applies could be added to a subsection 8 that read:

8. Volunteer members of the following boards and commissions may represent persons and entities before, or appear before, any town department, agency, board, or commission other than their own.

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Special Consideration

Posted Tue, 2006-11-28 16:36

This is the place to discuss another basic statement of conflict of interest, relating to how officials act toward city residents. Other codes use the language of "misuse of office." Please state your preferences and your experiences with both approaches.

100(5). Special Consideration

An official or employee* may not grant or receive, directly or indirectly, any special consideration, treatment, or advantage beyond what is generally available to city residents.

Comment: See the exception in the second sentence of subsection 6 below, which also applies here.

Some cities use the language of misuse of office (or of the "prestige" of office) here. I think it is unnecessary, but here is the IMLA Model Code version:

No public servants shall use or attempt to use their official positions improperly to unreasonably request, grant, or obtain in any manner any unlawful or unwarranted privileges, advantages, benefits or exemptions for themselves, or others, and no public servants shall use, or attempt to use, their positions to avoid the consequences of illegal acts for any person; nothing in this provision shall be construed to prohibit or discourage any public servant from performing any official duty or action zealously and enthusiastically.

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Gifts

Posted Tue, 2006-11-28 16:04

This is the place to discuss limitations on gifts to officials and employees, and their family members. Probably no other aspect of ethics codes has so many different solutions. Please share your thoughts about and experiences with various attempts at solving this basic problem, and suggest language that you feel works well.

100(4). Gifts*

  1. An official or employee*, his or her spouse or domestic partner*, child or step-child, parent, or member of his or her household*, may not solicit nor accept anything of value from any person or entity that the official or employee knows, or has reason to believe, has received or sought a financial benefit*, directly or through a relationship with another person or entity, from the city within the previous three years, or intends to seek a financial benefit in the future. Nor may an official or employee solicit or accept anything of value from anyone, including but not limited to a gift*, loan, political contribution, award, or promise of future employment, based on an understanding that a vote, official action, or decision would be or had been influenced thereby.


    If in doubt, the official or employee should refrain from soliciting or refuse a gift, and should first inquire into the person or entity's relationship with the city. [or: If the official or employee does not know whether a person or entity fits this description, he or she should inquire and, if it is discovered that the person or entity does fit this description, the gift should be returned (or its monetary value if it cannot be returned) and no further gifts accepted during the relevant period.]
  2. Gifts of property, money, or services given nominally to the city must be accepted by a resolution of the legislative body.

Comment: The first sentence of subsection 4a is difficult, even if the language itself is not. Here it is broken down and explained:

    Who cannot accept or solicit gifts: An official or employee, his or her spouse or domestic partner*, child or step-child, parent, or member of his or her household*

    What a gift is: anything of value (see the definition at 113(5) and the exceptions in 102)

    Whom one cannot accept gifts from: any person or entity that has received or sought a financial benefit from the city within the previous three years, or that intends to seek a financial benefit in the future.

    Must the gift giver have directly received or sought a financial benefit from the city? No, it also counts if it sought a financial benefit through a relationship with someone or some entity

    What the official or employee must know about the gift giver's relationship with the city: he or she must know the gift giver's relationship with the city, or know enough that he or she has reason to believe that such a relationship may exist. If uncertain, the gift should be refused and questions asked.

With respect to higher officials and department heads, and for officials and employees who deal directly with contractors and permitees, a city might choose to prevent them from receiving any gifts at all, other than campaign contributions and gifts from close relatives.

Cities have taken a great variety of approaches to the gift problem. The approach here is to limit only gifts from people and entities that do business with or otherwise get financial benefits from the city, including permits, zoning approval, etc. Other common approaches are to limit the amount of gifts or to limit the type of gifts or the type of givers.

There are two principal goals here: (1) to give clear guidance to officials, employees, and potential gift givers; and (2) to ensure city residents that their public servants are not accepting gifts from people and businesses who might be trying to influence them, whether or not that is a purpose for the gift (since no one can ever know the purpose).

The choice of the above approach is intended to keep the process simple: if there is any question of the giver's relationship with the city, do not accept the gift. If there is any reason to believe there is an improper motive behind the gift, do not accept it. There are exceptions to this rule below (at 102), but they are few and essentially allow just a lunch or two each year.

Another approach to gift-giving is to require the annual disclosure of all gifts either by itself or in addition to prohibitions. This puts a great deal of pressure on the city's informal oversight resources (citizen and media), since such gifts would be out of the jurisdiction of official boards. Since party organizations provide the most effective informal oversight in most communities, depending on disclosure will politicize this part of the city's ethics process. Here is language for that approach:

Officials and employees must file with the Ethics Commission, on or before January 31, a list of all gifts received during the preceding calendar year by them or by their spouse or domestic partner*, child or step-child, parent, or member of their household, to the extent that the aggregate amount of gifts received from an individual or entity (including gifts from all employees, partners, or investors) during the year is $50 or greater. Information to be disclosed is as follows:

  1. the date the gift was received and who received it;
  2. a description of the gift;
  3. the fair market value of the gift;
  4. the name, address and employer of the person who provided the gift;
  5. the name of any organization or individual represented by the person or on whose behalf the person was acting in providing the gift.

Please provide language for alternative approaches, and provide arguments for and against approaches, as well as instances where certain approaches have worked or not worked, in terms of providing guidance as well as limiting questionable gift-giving.

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