Model Code: Section #100 Subsection #1- Conflict of Interest

The most common way to define conflict of interest is as follows: No person subject to this code shall have any interest, financial or otherwise, direct or indirect, or engage in any business, employment, transaction or professional activity, or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his or her public duties or employment. However, most government officials and employees do, on occasion, have conflicting interests. The important thing is not for them to prevent them, but rather to manage them honestly and responsibly, that is, to disclose them and to not act where there is such a conflict, no matter how impartial they feel they can be. What matters is not whether one can still act with integrity, but whether one will be perceived that way. It should be noted that even voting or making a decision against a friend or relative, in order not to seem partial, is not acting impartially, because the reason for the vote or decision is wrong: it might actually be better or more fair to vote or decide in favor of the friend.

The one thing the common approach contains which does not appear in this model code is a prohibition of outside employment where there is not a conflict with a particular government interest, but instead with the general government interest in “the proper discharge of an employee or official’s duties” (a term that, by the way, is too vague to allow for enforcement). Outside employment does not only lead to conflicts of interest as defined in this code, but also interferes with doing one’s job by affecting the official or employee’s time, energy, and focus. Volunteers are expected to have other jobs, and it is not fair to prevent low-paid employees from having evening, weekend, or holiday jobs, but many cities have rules limiting the amount and type of outside employment. Please contribute outside employment provisions which you feel are just (or unjust), enforceable or unenforceable, and explain why. Such provisions should include procedural requirements, for example, applying for formal, written permission from one’s supervisor or department head (including disclosure of any officials, employees, or contractors involved), and the written acceptance of limitations on time and place of outside employment.

There is also nothing in this model code about incompatible positions in government and parties, that is, holding legislative and administrative positions, for example, especially where one office has the power to remove or affect the other’s budget; or multiple administrative positions that stretch an official or employee too thin; or non-governmental positions that can have a great effect on government, for example, a department head who is an officer of a local political party, posing a question about his or her responsibility to all citizens vs. to party members, as well as putting him in a position of affecting who his boss will be, come the next election. Often such rules do not appear in ethics codes (often they appear in the city charter), but because they do involve conflicts of interest, they should at least be included by reference. Please say how your municipality deals with this problem, or how you think it should be dealt with.

Another common conflict provision is as follows: No person subject to this code shall accept other employment which will either impair his or her independence of judgment as to his or her public duties or employment or require or induce him or her to disclose confidential information acquired by him or her in the course of and by reason of his or her official duties. What does it mean to have a job that impairs one’s independence of judgment, or a job that induces or requires one to disclose confidential information? And how could it be proven that particular employment could do this? Again, this sort of provision focuses on the conflict rather than on the improper management of the conflict. It is true that a developer should not be on a zoning board, nor should a contractor be in charge of a city’s purchases, at least in the relevant area. But in and of themselves, these are not violations of the public trust (so long as they recuse themselves when appropriate; but if that is very often, they are not fulfilling the obligations of their position); they are examples of seriously poor judgment on the individual’s part as well as on the part of those who nominated or appointed that individual. In addition, when a developer sits on a zoning board, it is a sign of a poor ethics environment, whose leaders have not spoken out against so severe a conflict. Cities may want to add a provision like the following to deal with this situation:

The recusal provisions of §100(3) do not permit an official or employee to make use of recusal on a regular basis. If recusal occurs with such frequency as to give the appearance of impropriety, the official or employee is deemed to have violated the provisions of this code.

Comment: An official or employee who is forced to recuse himself or herself on a regular basis should resign from his or her position. This should also be taken into account when a position is accepted.

Another approach to conflicts of interest is to deem something a conflict only to the extent that an interest is not disclosed and the official or employee participates in the matter. This approach recognizes that ignoring a conflict is the principal problem. Such an approach can be combined with defining “conflict of interest” as doing or not doing much of what appears in §100 of this model code, as it is, for example, in Kings County (Seattle), Washington. This makes it clear that the central concept of a conflict of interest takes many forms, but it also limits conflict to particular instances, in effect, saying that all other conflicts are acceptable.

New Haven, Connecticut enumerates several examples of conflicts of interest, as well as several exceptions. This is unusual, but if done thoughtfully and responsibly (being careful not to make the examples exclusive), it can provide clear guidance. The best place for such examples is, however, not in the code itself, but in explanatory guidelines on the city website or in pamphlet form. Here is what New Haven lists:

Sec. 12 5/8-6. Exception to the conflict of interest provisions.

The following situations shall not constitute a conflict of interest under section 209 of the Charter of the City of New Haven:

1. Where a municipal employee or public official is employed by a person who enters into a contract with the City of New Haven, where said employee or public official is not directly involved in the procurement, preparation, or performance of such contract and whose remuneration is not, directly or indirectly, derived from said contract;
2. If the municipal employee or public official is employed by any newspaper which publishes any municipal notice, resolution, ordinance or other proceeding where such publication is required or authorized by law;
3. If the municipal employee or public official is employed by a public utility that furnishes public utility services to the City of New Haven when the rates or charges therefor are fixed or regulated by the public utilities control authority;
4. If the municipal employee or public official is employed by a person or business which has a contract with the City of New Haven if the total consideration thereunder, when added to the aggregate amount of all consideration payable under contracts in which said employee or public official has an interest during a calendar year does not exceed five hundred dollars ($500.00).

Sec. 12 5/8-7. Examples of an interest requiring disclosure.

In accordance with article XXIII, section 210, of the Charter of the City of New Haven, interests requiring disclosure shall include, but not be limited to the following:

1. Where a member of the immediate family of a member of a board, commission or task force is employed by the City of New Haven;
2. Where a member of a board, commission or task force is employed by a nonmunicipal agency the funding of which is, in part or in its entirety, provided by funds authorized by the City of New Haven;
3. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in the application of federal, state or local funding authorized by the City of New Haven;
4. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is lobbying for specific legislation before the City of New Haven or when said organization is lobbying for specific State of Connecticut legislation which will result in the city receiving funding which is controlled by the city board, commission or task force of which the individual is a member;
5. Where a member of a board, commission or task force serves on the board of directors or governing board of a nonprofit organization when said organization is engaged in litigation against the City of New Haven;
6. Where a member of a board, commission or task force accepts an offer of employment, whether paid or unpaid, by the City of New Haven or by a program recommended by said task force but has not yet resigned or retired from said board, commission or task force to accept said offer of employment;
7. Where a municipal employee or public official has a financial or personal interest in a contract which was entered prior to the time of his nomination, appointment, election or employment to said position, so long as said contract is not renewed, amended or modified subsequent to his assuming public office;
8. Where an employee or public official seeks or obtains employment with a person, company or corporation engaged in business with the City of New Haven but has not yet resigned his position assume said employment;
9. Where an employee or public official applies for a city program or benefit over which he has control, influence or discretionary authority.