Handling an Indefinite Conflict Before It Becomes Definite

Indefinite conflicts can cause a lot of problems for officials. They see them as not yet ripe, not something they should have to deal with yet. But others see them as looming in the future, and want to know how the official plans to deal with them. One such indefinite conflict is the subject of controversy in Tampa, where a council candidate is the executive director of a nonprofit organization that has a large contract with the city to build affordable apartments. This sort of indefinite conflict comes up a lot.

According to an article in the St. Petersburg Times, the council candidate insists that this issue "is a someday, might possibly happen, down the road. First the campaign has to go forward and the elections have to be completed. I have to be elected for this story to have any meaning."

Others, including of course opponents, are insisting that if the executive director is elected, she will have to choose between her job and her council position. This seems extreme. In fact, the state ethics commission told the executive director that all she'd have to do is recuse herself from any matter involving the contract.

But Tampa is not the state, and Tampa has an unusually strict penalty when contract-oriented conflicts occur. Section 2-514(a) of its ethics code makes a violation of the contract provision "grounds for recall." An appointee or employee is automatically removed or discharged.

This penalty might be appropriate for someone who misuses his or her office to give a contract to his company or a family member (the provision also applies to "close personal relations," which includes "casual dating"). But it seems extreme to apply this penalty to someone who had nothing to do with her company getting the contract. In that situation, complete withdrawal from the matter would seem sufficient.

In fact, the provision could be interpreted to allow this solution. Here's the operative language:

...shall receive any substantial benefit or profit out of any contract or obligation entered into with the city department for which the officer or employee works, or have any direct or indirect financial interest in effecting any such contract or obligation

The second part, which appears to be a restatement in other terms of the first part, clearly refers only to contracts effected by the official or employee. The first part speaks of contracts "entered into" with the the official or employee's department. The council member clearly did not effect the contract for the city, nor did she have anything to do with the city entering into the contract.

The intent of this provision seems to be the prevention of misuse of office in a contract context, something which is not at issue here.

The article points out another possible conflict arising from this situation:  "the housing staff would end up in the awkward position of having to monitor a grant held by a nonprofit headed by a City Council member." If goals are not met, the grant money must be returned. Even if the council member completely withdraws from the matter, a difficult situation for the city could arise, and the council member would have to make sure that someone else at her organization handled all communications with the city. In other words, she would need to take off both her hats. Even then, there could be a question whether the organization was being treated like other organizations that do not fulfill their grant requirements.

It is true that this second eventuality is very indefinite. But the first is not. If the candidate wins the election, there will be a conflict. Especially since the law is unclear about what the candidate would have to do, and the choice would have to be made immediately after election, the matter should be dealt with in public. The candidate should say what she is going to do, and why. The candidate might even seek an advisory opinion from the ethics commission, so that it makes the interpretation rather than the candidate's attorney.

Instead the candidate says things like, "My compensation does not change. I'm a little offended that these questions are even coming up."

It's true that the code provision does not deal well with contracts entered into with nonprofits, but conflicts are just as real with respect to a nonprofit's executive director as they are with respect to a company's president. Differentiating these is not, I think, something the candidate should do.

The questions are going to keep coming up until she answers them or gets an answer from the ethics commission. This is the time to act.

For more on indefinite conflicts, see this blog post.

Robert Wechsler
Director of Research-Retired, City Ethics

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