"Interest" vs. "Benefit"

In my most recent blog post, I pointed out how vague the concept of an "interest" is for most people. I would like to discuss this problem further, because I think it is the cause of much misunderstanding, as well as weaknesses in ethics code drafting.

Ethics codes are essentially conflict of interest codes. But the idea of an "interest," not to mention how they conflict, is not very concrete and, therefore, confusing to many people.

Think about the interests that are in conflict. One is the public interest, which is very abstract, and yet is so important that it is the basis for representative democracy. The other interest is the personal or financial interest of each government official or employee. These interests are usually, although not always, concrete, but they are not always certain (a council member may hate the sister whose contract is before the council) and they are rarely important to anyone other than the official or employee. In other words, these "interests" are apples and oranges.

And yet it is very typical for an ethics code's principal provision to read, "No person subject to this code shall have any interest, financial or otherwise, which is in substantial conflict with the proper discharge of his or her public duties or employment."

There is nothing in this sort of provision to hang your hat on. It provides little guidance and it is difficult to enforce in many circumstances.

Just because ethics codes involve conflicts of interest doesn't mean that they have to use the language of interests. There is an alternative approach:  the language of benefits.

Here is the City Ethics Model Code's principal conflict of interest provision:

An official or employee may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal or financial benefit, not shared with a substantial segment of the city's population, for any of the following persons or entities...

The big advantage "benefit" has over "interest" is that when ordinary people think about unethical behavior in government, they think of people unfairly benefiting. For example, in the current Atlanta matter I recently discussed, there is a question about a council member's interest in his brother's job with the city. No one is concerned with this "interest." They are concerned that the council member wants to benefit his brother. No one but lawyers thinks in terms of "interests."

Another advantage of "benefit" is that it's both a noun and a verb (see the previous paragraph for two examples of its use as a verb).

Another advantage of "benefit" is that using this term makes it clear why gifts are conflicts of interest. In fact, many ethics codes use the term "benefit" instead of "gift." The word "benefit" gives an ethics code more integrity, in the wholeness sense, than the word "interest" because it can be used throughout the code and never seems forced or legalistic.

Another advantage of the "benefit" approach is that it provides a very simple solution to the problem that arose in the Atlanta matter, where the council member's interest wasn't clear because no one knew what would happen to his brother's job. As the City Ethics Model Code conflict provision shows, using the language of "benefit" makes it easy to say "may" result in a benefit, which would cover the Atlanta uncertainty, providing better guidance and preventing unnecessary controversy.

I can't take credit for inventing this alternative approach. I borrowed it from the model written by Mark Davies, executive director of the Conflicts of Interest Board of the City of New York and former executive director of the New York State Temporary State Commission on Local Government Ethics, as well as a professor at Fordham Law School.

However, of the nation's 25 largest cities, only 2 of them — Columbus and Los Angeles — primarily employ the "benefit" approach. Another 6 cities — D.C., Houston, Milwaukee, Philadelphia, San Antonio, Seattle — take a mixed approach.

The lawyers who write ethics codes should weigh the advantages and disadvantages of using the "benefit" or "interest" approaches to conflicts. Just because lawyers think in terms of "interests," because there is that central term "conflicts of interest," and because "interest" is currently the majority approach, doesn't mean it's the best way to provide guidelines to ordinary officials and employees, or to get the public and the press to best understand government ethics. Nor does this mean that it's the best way to create an ethics code that is structurally and linguistically consistent, or most easily enforceable.

It is common for anyone to copy what they see in the ethics codes around them. But this is the one aspect of most ethics codes that, I believe, has most made government ethics difficult to understand. We can't afford to have government ethics be harder to understand than it needs to be.

Robert Wechsler
Director of Research-Retired, City Ethics

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