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A Few Interesting Conflict Issues Raised in a Western Suburb of Boston
Monday, February 28th, 2011
Robert Wechsler
According to an
article in the Metro West Daily News on Friday, the Ashland (MA)
board of selectmen sent two reported allegations of possible acts of ethical
misconduct to the state ethics
commission. The request sought not enforcement, but clarification. I hope by
"clarification" the board meant that it is seeking advice about
continuing the behavior. Its other option was to file a complaint with
respect to past behavior. But it did not seem to want to "accuse" its fellow selectman of anything.
Knowing Too Much Is Not a Conflict
The first allegation is complex, but the answers are, I think, relatively simple. It arises from the fact that the selectman is also a police detective in the town, and that one of his charges was to investigate the town's garbage and recycling contractor with respect to mixing trash and recycling. Apparently, very little mixing was found. Now the contract is up for renewal, and the detective is involved in discussions about it.
There are three questions raised here. First, is the detective conflicted? Does his investigation create a relationship with the contractor that would either lead him to favor or disfavor it, or to appear to be doing so? Is there any way he or anyone else could benefit or be harmed by his participation?
It is possible that, in doing the investigation, he met with contractor personnel, but it is hard to believe that he would have done this enough to establish a relationship that might lead him to be prejudiced for or against the contractor. Conflicts are based on relationships, not on knowledge. This is not true in judicial proceedings, where inside knowledge is considered prejudicial both for judges and for jurors. This is another way in which government ethics differs from judicial ethics.
Confidential Information By Itself Is Not an Ethics Issue
Second, the allegation questions whether the detective divulged to the selectmen confidential information he learned from the investigation. This is not an ethics issue, because he would be divulging such information to help the selectmen make a better decision. His own interests, or his interests as a detective, would not be involved. If the information favored or disfavored the contractor, it would be based on evidence, not favoritism.
Disclosure of One's Multiple Roles
Third, the allegation questions whether the detective, when he attended a meeting with another selectman, the assistant town manager, and contractor representatives, disclosed that he was both a police detective and a selectman. Even if there was no conflict between his two roles, it is true that he should have disclosed both roles to the contractor when meeting with its personnel.
It's interesting that, despite being involved in discussions about the contract, the detective withdrew from final deliberations and from the vote on the contract. I don't think this was necessary, but if he was under attack, it was probably the best thing to do.
The Conflict of an Employee on a Governing Board
The second allegation involves a more common problem when an employee also sits on a town's governing board. The detective wrote to two fellow selectmen offering harsh opinions about the town manager.
First of all, as the board of selectmen later recognized, according to a piece by the Metro West Daily News editor last week, this was itself an open meetings violation.
Second, the town manager is the appointing authority for the police department, and he is in turn overseen by the board of selectmen. Therefore, the detective is in the position of overseeing the man who appointed and oversees his boss.
The town counsel says that there could be a financial conflict of interest, because his conduct could affect the town manager's contract. But I don't think the financial or contract consideration is required for there to be a conflict here. The real conflict is the conflict any employee on a governing board has: he is both manager and employee.
These two hats are hard to reconcile. As selectman, he is making decisions that affect those above him and his peers. Wearing these two hats is difficult on his fellow police officers, as well as on his superiors and his fellow selectmen. These problems cannot be dealt with responsibly via withdrawal from participation when police matters arise. I favor rules preventing employees from sitting on governing boards. It's less a problem of public trust than it is of trust within a government organization, which is also important for the proper functioning of government and, therefore, in the public interest.
Robert Wechsler
Director of Research-Retired, City Ethics
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Knowing Too Much Is Not a Conflict
The first allegation is complex, but the answers are, I think, relatively simple. It arises from the fact that the selectman is also a police detective in the town, and that one of his charges was to investigate the town's garbage and recycling contractor with respect to mixing trash and recycling. Apparently, very little mixing was found. Now the contract is up for renewal, and the detective is involved in discussions about it.
There are three questions raised here. First, is the detective conflicted? Does his investigation create a relationship with the contractor that would either lead him to favor or disfavor it, or to appear to be doing so? Is there any way he or anyone else could benefit or be harmed by his participation?
It is possible that, in doing the investigation, he met with contractor personnel, but it is hard to believe that he would have done this enough to establish a relationship that might lead him to be prejudiced for or against the contractor. Conflicts are based on relationships, not on knowledge. This is not true in judicial proceedings, where inside knowledge is considered prejudicial both for judges and for jurors. This is another way in which government ethics differs from judicial ethics.
Confidential Information By Itself Is Not an Ethics Issue
Second, the allegation questions whether the detective divulged to the selectmen confidential information he learned from the investigation. This is not an ethics issue, because he would be divulging such information to help the selectmen make a better decision. His own interests, or his interests as a detective, would not be involved. If the information favored or disfavored the contractor, it would be based on evidence, not favoritism.
Disclosure of One's Multiple Roles
Third, the allegation questions whether the detective, when he attended a meeting with another selectman, the assistant town manager, and contractor representatives, disclosed that he was both a police detective and a selectman. Even if there was no conflict between his two roles, it is true that he should have disclosed both roles to the contractor when meeting with its personnel.
It's interesting that, despite being involved in discussions about the contract, the detective withdrew from final deliberations and from the vote on the contract. I don't think this was necessary, but if he was under attack, it was probably the best thing to do.
The Conflict of an Employee on a Governing Board
The second allegation involves a more common problem when an employee also sits on a town's governing board. The detective wrote to two fellow selectmen offering harsh opinions about the town manager.
First of all, as the board of selectmen later recognized, according to a piece by the Metro West Daily News editor last week, this was itself an open meetings violation.
Second, the town manager is the appointing authority for the police department, and he is in turn overseen by the board of selectmen. Therefore, the detective is in the position of overseeing the man who appointed and oversees his boss.
The town counsel says that there could be a financial conflict of interest, because his conduct could affect the town manager's contract. But I don't think the financial or contract consideration is required for there to be a conflict here. The real conflict is the conflict any employee on a governing board has: he is both manager and employee.
These two hats are hard to reconcile. As selectman, he is making decisions that affect those above him and his peers. Wearing these two hats is difficult on his fellow police officers, as well as on his superiors and his fellow selectmen. These problems cannot be dealt with responsibly via withdrawal from participation when police matters arise. I favor rules preventing employees from sitting on governing boards. It's less a problem of public trust than it is of trust within a government organization, which is also important for the proper functioning of government and, therefore, in the public interest.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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