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Conflicts Involving Reputation and Government Positions
Saturday, May 1st, 2010
Robert Wechsler
San Francisco's Conflict
of Interest code has an unusual provision about voting on one's own
conduct or position. You would think this provision goes without
saying, but I can assure you it does not.
Character and Conduct
It is unusual for an official to actually vote when the issue is his or her character or conduct, but I have seen it happen. And those who do this have a good argument, at least in terms of law. Most conflict laws limit disclosure and recusal to financial interests and benefits, and these do not include one's character or conduct.
The fact that it seems as bad to be involved in matters of your own conduct, other than publicly defending yourself, as it does to be involved in matters where you may financially benefit makes the financial-personal distinction seem very weak indeed. From the point of view of personal vs. public interest, participation in matters involving one's reputation is just as damaging. In fact, one's reputation can be far more valuable than any particular financial interest.
Here's an example. A first selectman (effectively mayor) of my town once would not allow a censure motion against him to be put on the agenda or even mentioned. His reputation was extremely important to him, and he did not want the public or the press to know what he had done. And he knew that if it did not come up as an official action, the press would not report on his alleged conduct, or even on the motion.
Effectively, the San Francisco provision says that officials and employees have an interest in (or benefit from) their reputation. Therefore, another way to deal with this problem is to specify reputation in the definition of "interest" and/or "benefit." In the alternative, personal benefits in general can be added to financial interests, since there are other instances of non-financial interests that are valuable to officials and employees (see a recent blog post on this topic, as well as these: 1 and 2).
Office and Position
The second part of the provision involves a more common problem: influencing decisions involving one's office or position.
There have been two examples of this in my own town, one involving a paid position, another involving an unpaid office. Although the chair of a committee in my town did not vote on the selection of someone to head the department her committee oversaw, it was apparent that she had influence on the decision of the committee, especially because it was asked to select three candidates and it selected only one, its own chair. I dealt with this matter in detail in an earlier blog post, where I showed the limitations of a Massachusetts ethics provision, which applies to local officials. The San Francisco provision would better deal with this problem.
The other situation involves an allegation, made publicly, that a board chair offered a board member his chairmanship in return for using the board member's influence as a party committee chair to get another board member a town job. Since the chairmanship has no financial value, this would not normally be considered a conflict on the chairman's part. And the misuse of a political position, as opposed to an elected board position, is also not generally considered an ethical violation. And yet no one would consider the offer, or acceptance of the offer, to be ethical.
Again, this problem could be solved by defining "interest" and "benefit" as including the non-financial along with the financial. But even with such a definition, it could be helpful to have a provision that deals expressly with this issue, as in San Francisco and Massachusetts.
Robert Wechsler
Director of Research-Retired, City Ethics
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§3.210. Voting on Own Character or Conduct.
(a) Prohibition. No officer or employee of the City and County shall knowingly vote on or attempt to influence a governmental decision involving his or her own character or conduct, or his or her appointment to any office, position, or employment.
(b) Exceptions. Nothing in this Section shall prohibit an officer or employee from (i) responding to allegations, applying for an office, position, or employment, or responding to inquiries; or (ii) participating in the decision of his or her board, commission, or committee to choose him or her as chair, vice chair, or other officer of the board, commission, or committee.
Character and Conduct
It is unusual for an official to actually vote when the issue is his or her character or conduct, but I have seen it happen. And those who do this have a good argument, at least in terms of law. Most conflict laws limit disclosure and recusal to financial interests and benefits, and these do not include one's character or conduct.
The fact that it seems as bad to be involved in matters of your own conduct, other than publicly defending yourself, as it does to be involved in matters where you may financially benefit makes the financial-personal distinction seem very weak indeed. From the point of view of personal vs. public interest, participation in matters involving one's reputation is just as damaging. In fact, one's reputation can be far more valuable than any particular financial interest.
Here's an example. A first selectman (effectively mayor) of my town once would not allow a censure motion against him to be put on the agenda or even mentioned. His reputation was extremely important to him, and he did not want the public or the press to know what he had done. And he knew that if it did not come up as an official action, the press would not report on his alleged conduct, or even on the motion.
Effectively, the San Francisco provision says that officials and employees have an interest in (or benefit from) their reputation. Therefore, another way to deal with this problem is to specify reputation in the definition of "interest" and/or "benefit." In the alternative, personal benefits in general can be added to financial interests, since there are other instances of non-financial interests that are valuable to officials and employees (see a recent blog post on this topic, as well as these: 1 and 2).
Office and Position
The second part of the provision involves a more common problem: influencing decisions involving one's office or position.
There have been two examples of this in my own town, one involving a paid position, another involving an unpaid office. Although the chair of a committee in my town did not vote on the selection of someone to head the department her committee oversaw, it was apparent that she had influence on the decision of the committee, especially because it was asked to select three candidates and it selected only one, its own chair. I dealt with this matter in detail in an earlier blog post, where I showed the limitations of a Massachusetts ethics provision, which applies to local officials. The San Francisco provision would better deal with this problem.
The other situation involves an allegation, made publicly, that a board chair offered a board member his chairmanship in return for using the board member's influence as a party committee chair to get another board member a town job. Since the chairmanship has no financial value, this would not normally be considered a conflict on the chairman's part. And the misuse of a political position, as opposed to an elected board position, is also not generally considered an ethical violation. And yet no one would consider the offer, or acceptance of the offer, to be ethical.
Again, this problem could be solved by defining "interest" and "benefit" as including the non-financial along with the financial. But even with such a definition, it could be helpful to have a provision that deals expressly with this issue, as in San Francisco and Massachusetts.
Robert Wechsler
Director of Research-Retired, City Ethics
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