making local government more ethical
Conflicts of interest are not always positive, any more than relationships are always positive. And conflicts are based on relationships.

We tend to think of an official using his position to help a family member or business associate. But sometimes officials use their position to harm someone with whom they have a negative relationship, anyone from a former in-law (the bum who dumped my sister) or current in-law (that woman who's driving my brother crazy) to a former business partner or a major business competitor.

These negative situations do not crop up in the news very often. That is why it is worth noting a situation that occurred with respect to Colorado's Public School Capital Construction Assistance Fund. According to an article today in the Daily Caller, an auditors report recommended better conflicts of interest rules for the Fund's board.

As an example of a problematic conflict situation, it gave the handling an application for a grant from a school district that had previously rejected bids from two Assistance Fund Board members’ construction companies. Minutes show that both members spoke negatively about the school district's project. The auditors were surprised they were allowed to participate in the matter.

It is unethical for a local official to violate a law, especially the city or county charter. But such a violation is usually not a government ethics violation, because it has nothing to do with conflicts of interest. It may be a misuse of office, but it is not a misuse of office to benefit oneself, one's family, or one's business associates.

And yet some ethics codes contain a provision making a legal or charter violation an ethics violation. Here is one from Forest Park, GA, a city of just under 20,000, which has been the basis for the city's two ethics complaints in the last three years, according to an article in the Clayton News Daily:
Section 2-2-44(t). No city official shall engage in any activity or transaction that is prohibited by law now existing or hereafter enacted which is applicable to him/her by virtue of being a city official.
Both ethics complaints alleged that high-level elected officials ordered members of the executive branch to do something. The city charter prohibits this. Such acts are generally prohibited by charters in council-manager governments, such as Forest Park's.

In my book Local Government Ethics Programs, I have argued for the language of "benefit" instead of the language of "interest." (for some of the reasons why, click here and search for "terminology"). When a colleague asked me for a list of the jurisdictions that do, in fact, use the language of "benefit," I did some eye-opening research. Here are the results, based on the ethics codes in my computer's database (in other words, the information is not complete, but it gives a good picture of language use in local and state ethics codes).

When I refer to the language of "benefit," I am referring to the use of the word "benefit" or an equivalent term in basic conflict of interest provisions, like the City Ethics Model Code's:
An official or employee may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal or financial benefit, not shared with a substantial segment of the city's population, for any of the following persons or entities . . .
Court decisions, especially when combined with criminal enforcement of ethics violations, can be very harmful to local government ethics. The court in a Monterey County case involving a serious §1090 conflict of interest matter that officials were not only aware of, but appear to have helped create, has used two recent California court decisions to limit prosecution to just one official. Recently, the official's last-ditch effort to dismiss the charges on the basis of an entrapment argument failed, according to an article in yesterday's Monterey Herald. In fact, a judge barred the official from calling anyone, including his colleagues, to testify in a preliminary hearing on the entrapment defense.

Yesterday's blog post discussed the law giving California's Fair Political Practices Commission (FPPC) authority over §1090 of the state code, which deals with contract-related conflicts of interest and applies to both local and state officials. Knowing little about this section, which stands outside the state's ethics code (known as the Political Reform Act), I did a little research into it. It's an interesting provision that has received some interesting interpretations. Here is §1090:
Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity.
No Contract Where There's a Conflict
The language that stands out is "by any body or board of which they are members." This refers to the making of contracts. But one wonders how this language is applied. According to the relevant section of an ethics training course on the Attorney General's website, "If a member of a multi-member body with contracting power has a financial interest in a contract, section 1090 generally provides that the contract cannot be made even if the member has disqualified himself or herself from actually participating in the contract."

There is a great deal of misunderstanding concerning the difference between a conflict of interest and a gift. It appears that most people consider them two completely different things. In fact, they represent two kinds of conflicts, pre-existing conflicts and conflicts that are created by an event. The confusion between the two characterizes a situation that led to an ethics complaint in Los Angeles.

According to an article on the KPCC public radio site, from January to May this year, a son of interim general manager of the Los Angeles Department of Building and Safety had a paid internship (while in law school) with the lead law firm representing the developer of a huge project known as the Millenium Towers. The complaint against the general manager characterized the issue as a conflict of interest, and two published reports of the matter do the same (but a comment does suggest it was a gift). However, the general manager was involved in the matter several months before his son was hired by the law firm. There was no pre-existing conflict or relationship, only the hiring of a family member after the law firm and general manager were already involved in the matter.