Fitting Conflicts to Agencies and Departments

Anonymous

Wed, 01/30/2013 - 05:43

City Related

One of the rarely questioned truisms of local government ethics is,
"One size does not fit all." Usually this means that one ethics code
is not right for every city or county, that every jurisdiction has
its own issues and problems. 
 
In some ways this is true. New York City's huge ethics program is
hardly appropriate to a small town, because there is such a large
difference in available resources. But there is no difference when
it comes to ethics rules or the need for training or independent
advice and enforcement. 
 
Think of it this way: NYC has a huge corporation counsel
office, which no town would think of copying. But every small town
has a town attorney, and officials turn to the town attorney just as
NYC officials turn to the corporation counsel for legal advice. Why
shouldn't small town officials have access to professional ethics
advice, as well, even if it's only from someone on contract, who
bills only three hours a month? 
 
"One size does not fit all" does not apply to basic ethics
provisions, to enforcement processes, or to the administration of an
ethics program. In other words, the truism is rarely appropriate to
the situations where it is used, such as the
drafting of a state model ethics code or the application of a good
county ethics program's rules to one's own county. 
 
One place where it does apply, however, is in the specifics. The
specifics of conflicts in a procurement program are different from
those for a planning commission or a local legislative body. Los
Angeles has a unique system of conflict of interest codes that takes
into account the true differences among agencies, departments, and
boards.

The conflict codes are limited to disclosure, but since disclosure
involves possible conflict situations, the codes also give officials
a good idea of the different sorts of conflict situation to look out
for. Therefore, they provide more concrete guidance as to what
conflict situations may arise and, when they do, require the seeking
of advice from the ethics commission's staff. 
 
Links to the 52 different conflict of interest codes, from Aging to
Zoo can be found on <a href="http://ethics.lacity.org/govethics/coiindex.cfm" target="”_blank”">one webpage</a>,
along with an explanation of the purpose behind the codes and a
description of the code format. The departments do not create their
codes in isolation. They are each reviewed by the ethics commission
and by the city attorney's office, and they have to be approved by
the city council. 
 
The Convention Center code, for example, requires the disclosure not
only of benefits from companies that do business with the convention
center, but from any company that "Manufactures, sells or leases any
furniture, supplies, materials, machinery or equipment of the type utilized by the Los
Angeles Convention Center" or any company that "Provides consulting
and/or contractual services, including but not limited to the
following: a. crowd handling or control, ticket taking or ticket
selling; b. security; c. electrical and/or electronics installation,
maintenance and repair..." 
 
Convention centers are notorious for contract problems. Therefore,
the L.A. convention center wants to make sure that its officials and
higher-level employees disclose, and recognize as problematic, a
relationship with a company that may
seek business from the convention center. There is even a
requirement that an official disclose a relationship with a company
that "Is or within the past twelve months was a competitor [emphasis mine] of any
person or business entity in any of the above." It is unusual, but
very mature, to recognize that being involved with the competitor of
someone seeking or doing business with a government agency can
itself cause problems, both in fact and in perception. 
 
Starting with a basic but strong requirement allows
agencies to make more pertinent and stronger requirements. Starting by saying that one size does not fit all tends to lead to the weakening of
requirements ("why should our officials have to disclose information about their private affairs?"). In Los Angeles, agencies cannot undermine
requirements, only make them more pertinent and, in some cases,
stronger. 
 
Here are some pertinent provisions for Disability commission
staff, who must disclose:<blockquote>

A. Any investment in, or income from, any person that designs,
manufactures, distributes, sells or repairs adaptive equipment or
assistive technology. 
 
B. Any investment in, or income from, any person that publishes,
designs, manufactures, distributes, sells or repairs materials in
alternative format for persons with disabilities. 
 
C. Any investment in, or income from, any person that provides sign
language services. 
 
D. Any investment in, or income from, any person that engages in
construction, design or repair of facilities or structures for the
purpose of increasing access.</blockquote>

Impertinent Differences 
Sometimes, however, special requirements combine pertinence with,
well, impertinence. Take the proximity of an official's real property to government operations (see <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Pro…; target="”_blank”">the
section on Proximity</a> in my book <a href="http://www.cityethics.org/ethics%20book" target="”_blank”">Local Government Ethics
Programs</a>). The Airport department's basic proximity rule is to
disclose "Any interest in real property located on or within two
miles of the boundaries of any land owned or used by the Department
of Airports of the City of Los Angeles, or land jointly held with
any of its tenants and concessionaires, or their agents or trusts."
The rules for other departments differ. For the Convention Center, for example, the proximity rule is one mile,
and for the Harbor department it is one-half mile. However,
considering that the California proximity rule is only 500 feet, all
of these distances are an improvement. But it would be best if there
was a standard proximity rule, unless a department could make a good case that a shorter distance was more appropriate. 
 
Different Folks 
It's worth noting that, in these conflict codes, even rules such as the proximity rule are not
the same for all officials. Many of the conflict codes have
different categories of official, with the highest-level officials
in Category 1. With respect to Airport officials, the two-mile
proximity rule applies only to Category 1 officials. Those in
Categories 2, 4, 7, and 9 are required to disclose any real property
"within the jurisdiction," which I assume means the city of Los
Angeles, but may refer to a larger area in which all the airports are. Other
disclosing officials need not disclose real property at all. These
others include accountants, auditors, engineers, managers, etc. It would be useful if there was an explanation of why some
and not others are required to disclose real property holdings. 
 
These conflict of interest codes are far from perfect, but they do
provide valuable specifics for any department, agency, or board
considering how disclosure requirements or conflict provisions may
be applied specifically to their officials, employees, and consultants. Conflict provisions do fit all, but
they fit each department differently, and it is valuable to discuss
this and even put the results down in writing, either as guidelines
or in the form of a separate code to make general ethics provisions
fit the department more snugly. 
 
However, it is important to ensure that this process not be used
to weaken government ethics rules. It should only be used to apply them in a way that
provides more guidance, more understanding and, therefore, more responsible handling of conflict situations. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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