Preferential Treatment - What It Is, What It Isn't, and Why
- 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.
A complaint was filed in the Fairfield matter against the town's
first
selectman (effectively, the mayor) and the town attorney for giving
preferential treatment to a developer. This treatment appears
to have consisted of acts that helped the developer with respect to a
big project in town, including the removal of the conservation director
from the
project (allegedly without the authority to do so) and replacing him
with a consultant. The complaint did not contend that the
first selectman or town attorney had any financial interest in the
project or the developer, so there was no conflict of interest involved.
The question is, what sorts of preferential treatment are ethics
codes meant to deal with? Preferential treatment provisions leave this
open, because favoritism can take so many different forms.
The ethics commission decided that what happened in Fairfield was a
management decision intended to get the project moving and to prevent
litigation. Management decisions often involve preferential treatment,
but not the sort preferential treatment provisions were intended to
deal with.
In other cases, the preferential treatment can be political rather
than ethical. Ethics complaints should not be brought against elected
officials who, for example, use their position to appoint members of
their parties
over other city residents. This might be objected to as cronyism, but
it is a political issue, not an ethical issue. However, were there a
test to be passed before someone could take a position, and an official
allowed a party member to skip the test or ignored his failing score,
this is preferential treatment.
Preferential treatment is about how one treats those one favors (including oneself)
versus how one treats residents in general (the public). It's about
letting friends
borrow city equipment or use the city's xerox machines, or using them
oneself for personal reasons. Preferential treatment is a major
subsection of conflict of interest, the one where an official cannot
recuse himself, but must instead, depending on the situation,
refrain from acting, act fairly, or disclose his actions. This
subsection includes the acceptance of
gifts, fees and honorariums, the use of confidential information,
political
solicitation, some revolving door situations, the misuse of city
property and reimbursements, nepotism, and transactions with
subordinates.
Preferential treatment is often treated as the poor relation to
conflict of interest,
but in some of its forms it is the civil sibling of criminal bribery. In bribery, influence has to be proven.
Preferential
treatment is sometimes bribery without the proof of influence, with
all the appearance
of bribery, although this is usually denied. Taking large gifts creates the
appearance of bribery, as do many revolving door situations, but is almost impossible to prove the intention or fact of influence.
The other side of preferential treatment is misuse of office, using
one's power in a way that is not in the public interest, but in the
interest of oneself or others. Misusing confidential information,
hiring relatives, letting friends use city cars, doing political work
on city time and with city property or on city property, when ordinary
members of the public can't.
It is important to understand what preferential treatment consists
of, and what it does not consist of. And why. Because too often it is
either ignored, or stretched to include conduct that is managerial or
political, sometimes for the political purposes of the complainant.
Note: You can't get
free access to the Connecticut Post article from which I took much of
the information in the first part of this blog entry, but you can read the
comments to the article, which provide a strong flavor of what lay
behind the ethics complaint in this matter.
Robert Wechsler
Director of Research-Retired, City Ethics
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