Conflicts: The Devil's in the Verbs

As we know, the devil's in the details. In government ethics codes, this means the language. In the case I will look at here, the devil's in the verbs.

According to an article on the WTSP-TV website last week, a Florida state senator who lobbies for a sports team seeking taxpayer subsidies relating to payments on its sports arena voted on a stadium/arena subsidy bill. After the TV station asked the senator about his vote and lack of disclosure of a conflict, the senator "received a written opinion from the Senate's special counsel, which indicated he did not need to file a disclosure because, while his client could benefit from the legislation, 'private gain or loss to your principal would be speculative.'"

A look at the ethics code language on which the counsel based his advice is instructive:

Any state public officer who abstains from voting in an official capacity upon any measure that the officer knows would inure to the officer's special private gain or loss, or who votes in an official capacity on a measure that he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained ... shall make every reasonable effort to disclose the nature of his or her interest as a public record...

The verb combination "knows would" (italicized above) means that an official who is an agent — in this case a lobbyist — need not withdraw from participation in a matter from which his principal (better known as his "client") might benefit. In fact, he need not even disclose his representation of this client unless the official "knows" that the client would benefit. If there is any doubt — which there usually is, especially with regard to a client's business, about which an agent has less knowledge than of his own business — the official need not disclose his conflict, even if he believes that his client will likely benefit, even if his principal asked him to sponsor the bill, even if the official's intention is to benefit his client, even if — most important — it looks to all the world that he is trying to benefit his client.

Because trying to benefit one's client, or being seen as trying to benefit one's client, does not even require disclosure, when the relationship with the client comes out, it is not only a problem for the official, but also an instance of institutional corruption, a decision by the legislature to hide its member's conflicts. It means that the public will reasonably see the entire legislature as conspiring to allow its members to financially benefit by representing those who may benefit from their legislative activity.

What matters with respect to conflicts of interest is not the official's knowledge or the certainty of benefits. What matters is the appearance to the public that an official is seeking to obtain a benefit for those with whom he has special relationships. Whether the benefit is certain or whether such a benefit is actually obtained is irrelevant.

The Florida legislature's choice of verbs is weak. It is responsible for the tiny number of disclosures made by Florida legislators every year. According to the article, last year there were just 20 disclosures from 40 state senators, and just 9 from 120 state representatives.

The verb "would" should be changed to what is considered the best practice: "may." If an official's client "may" benefit, the official should disclose the conflict and withdraw from participation. For the benefit of the legislature and of the public's trust in it, he should not be allowed to be seen trying to benefit his client.

The Florida approach is damaging to the public trust. At the other end of the continuum of certainty of benefit, New York City’s conflicts of interest board has found that there is a violation if an action has a more than a 0% chance of benefiting an official or associated person. The City Ethics Model Code uses the language, "he or she knows, or has reason to believe, may..." Rhode Island uses the language, "will or can reasonably be expected to directly result in an economic benefit." Tulsa says, very simply, “The possibility, not the actuality, of a conflict shall govern.”

Unfortunately, since most states use the language of "interest" rather than "benefit" or "gain," there is no active verb in most ethics codes. I believe the language of "benefit" is preferable, but only if it is accompanied by the verb "may."

Robert Wechsler
Director of Research-Retired, City Ethics

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