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The Cincinnati Situation III - Indefinite Benefits and Proximity
Thursday, June 10th, 2010
Robert Wechsler
Indefinite benefits, like indirect benefits, are often not dealt with
by ethics codes, and this means that they can cause confusion and controversy. This is one reason I
tend to speak in terms of "possible conflicts," because possible
conflicts based on indefinite benefits can be just as injurious to the
public trust as certain conflicts based on certain benefits.
In the current situation in Cincinnati, it is not certain whether the streetcar project will benefit the council member's family firm, nor is it even certain that the streetcar route will run by or near the family firm's property, as the council member pointed out in his letter to the editor. However, the great likelihood, based on other such projects and the intent of this project, is that it will benefit all nearby properties and businesses.
The city solicitor has taken the position that the definiteness of the benefit (or, as he terms it, the "tangibility" of the benefit) is relevant to whether or not the council member should recuse himself. According to the April 27 Enquirer article, he said that if the streetcar project, as it moves forward and is defined with greater specificity, creates "a more tangible, direct financial benefit," then his position on recusal might change.
The 2009 state EC opinion effectively took a similar position. According to the same article, it concluded, "Based on your own statements and the findings of the feasibility study, it appears that the streetcar project will have a definite and direct financial impact on property in which your father has an interest." The implication is that if the impact was indefinite or indirect, the council member's situation might be different.
I think it is best not to consider whether a benefit is definite or indefinite, but rather to look at definiteness in terms of the probability of benefit. In the current situation, if the feasibility study says that the project is likely to benefit local property holders and, in fact, that is an important purpose of the project, then the probability of benefit is high enough for property holders to expect a benefit and for a conflict to exist.
Similarly, the closer to the streetcar route the property is, the more probable the benefit. If the family firm's properties were all more than ten blocks from the proposed route, then it would be reasonable to say that the benefits were too indefinite for recusal to be required. But the properties are all within only three blocks, making the benefits highly probable.
Since proximity is the most numerical of all the considerations relating to probability of benefit, for determining whether a conflict exists, many ethics codes set a specific number of feet from a property or project being dealt with by a government official or body (I have written three blog posts on proximity rules 1 2 3).
As for the indefiniteness of the streetcar route itself, this is not an issue if the principal route being discussed is close to the family firm's properties. If, for example, only one of five proposed routes goes near the properties and, as is the current situation, the council has no input into the selection of the route, the probability of a benefit to the family firm would be low enough to allow the council member to vote. But if the route is essentially, although not absolutely, set, or there are two competing routes, then a council member's participation would allow him to push for the route to pass near his family firm's properties.
When the definiteness of a benefit is relatively clear, it should be treated the same as a definite benefit. When the benefit is very indefinite, it should be treated the same as a de minimis benefit. But when it is not too clear but still likely, it is best to seek the opinion of an individual or body that is both professional and neutral, that is, an independent ethics officer or commission. The provision of professional and neutral ethics advice is a major reason why it is so important for a local government to have an independent ethics officer and/or commission.
Robert Wechsler
Director of Research-Retired, City Ethics
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In the current situation in Cincinnati, it is not certain whether the streetcar project will benefit the council member's family firm, nor is it even certain that the streetcar route will run by or near the family firm's property, as the council member pointed out in his letter to the editor. However, the great likelihood, based on other such projects and the intent of this project, is that it will benefit all nearby properties and businesses.
The city solicitor has taken the position that the definiteness of the benefit (or, as he terms it, the "tangibility" of the benefit) is relevant to whether or not the council member should recuse himself. According to the April 27 Enquirer article, he said that if the streetcar project, as it moves forward and is defined with greater specificity, creates "a more tangible, direct financial benefit," then his position on recusal might change.
The 2009 state EC opinion effectively took a similar position. According to the same article, it concluded, "Based on your own statements and the findings of the feasibility study, it appears that the streetcar project will have a definite and direct financial impact on property in which your father has an interest." The implication is that if the impact was indefinite or indirect, the council member's situation might be different.
I think it is best not to consider whether a benefit is definite or indefinite, but rather to look at definiteness in terms of the probability of benefit. In the current situation, if the feasibility study says that the project is likely to benefit local property holders and, in fact, that is an important purpose of the project, then the probability of benefit is high enough for property holders to expect a benefit and for a conflict to exist.
Similarly, the closer to the streetcar route the property is, the more probable the benefit. If the family firm's properties were all more than ten blocks from the proposed route, then it would be reasonable to say that the benefits were too indefinite for recusal to be required. But the properties are all within only three blocks, making the benefits highly probable.
Since proximity is the most numerical of all the considerations relating to probability of benefit, for determining whether a conflict exists, many ethics codes set a specific number of feet from a property or project being dealt with by a government official or body (I have written three blog posts on proximity rules 1 2 3).
As for the indefiniteness of the streetcar route itself, this is not an issue if the principal route being discussed is close to the family firm's properties. If, for example, only one of five proposed routes goes near the properties and, as is the current situation, the council has no input into the selection of the route, the probability of a benefit to the family firm would be low enough to allow the council member to vote. But if the route is essentially, although not absolutely, set, or there are two competing routes, then a council member's participation would allow him to push for the route to pass near his family firm's properties.
When the definiteness of a benefit is relatively clear, it should be treated the same as a definite benefit. When the benefit is very indefinite, it should be treated the same as a de minimis benefit. But when it is not too clear but still likely, it is best to seek the opinion of an individual or body that is both professional and neutral, that is, an independent ethics officer or commission. The provision of professional and neutral ethics advice is a major reason why it is so important for a local government to have an independent ethics officer and/or commission.
Robert Wechsler
Director of Research-Retired, City Ethics
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