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Is It Right to Prohibit Conflicts?
Sunday, February 13th, 2011
Robert Wechsler
According to an
article in Friday's San Bernardino Sun, a San Bernardino city council member accused
of a conflict of interest resigned. He owned a towing company whose
major source of income is a contract with the city. The contract was
made before he joined the council. According to
an article Saturday in the Press-Enterprise, the council has been
discussing a plan to do its own towing, and the council member did not
participate at least in the votes (the article says nothing about the
discussions).
State law does not allow a council member to have a contract that was approved by the council, even if he was not then on the council. Therefore, the council member tried to sell his towing business. But he could not find a buyer. His mother is ill, and he felt compelled to choose the business over the seat on the council. Was it right to require him to make this decision?
There is no doubt that it looks bad for a council member to have a contract with the city, but if the contract predated his joining the council, there is no actual conflict. The conflict would arise in three possible situations, only one of which apparently occurred.
If a problem happened with the towing company that was serious enough to merit the council's attention (if that was possible), it would be hard for the council to discuss its colleague's problems. If the council would not consider such a problem, then this could not lead to a conflict.
If, as happened, the council wanted to consider an alternative to contracting with towing companies, the council member could easily not participate. The question is, would the council's decision to stay with the current situation be seen by the public as helping out its colleague?
The most serious problem arises when the contract comes up for renewal or rebidding, assuming that the council has an important role in the process. It doesn't seem like something a council should deal with beyond approving contracts made under the formal bidding process overseen by the procurement office. If the council does, however, have a greater role in most instances, it could decide to leave the towing contract to the procurement office, doing no more than approving its decision, without the council member's participation.
In short, via responsible withdrawal, considering the possibilities of a conflict arising, and creatively dealing with problems, I do think the council member could have kept his seat and his towing business.
The fact that he could not raises a question about the nature of a provision that forbids conflicts. I feel that single conflicts, as opposed to the ongoing conflicts, say, of a developer or lawyer, should not generally be prohibited. Government ethics is not about preventing conflicts, but about dealing responsibly with conflicts.
Robert Wechsler
Director of Research-Retired, City Ethics
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State law does not allow a council member to have a contract that was approved by the council, even if he was not then on the council. Therefore, the council member tried to sell his towing business. But he could not find a buyer. His mother is ill, and he felt compelled to choose the business over the seat on the council. Was it right to require him to make this decision?
There is no doubt that it looks bad for a council member to have a contract with the city, but if the contract predated his joining the council, there is no actual conflict. The conflict would arise in three possible situations, only one of which apparently occurred.
If a problem happened with the towing company that was serious enough to merit the council's attention (if that was possible), it would be hard for the council to discuss its colleague's problems. If the council would not consider such a problem, then this could not lead to a conflict.
If, as happened, the council wanted to consider an alternative to contracting with towing companies, the council member could easily not participate. The question is, would the council's decision to stay with the current situation be seen by the public as helping out its colleague?
The most serious problem arises when the contract comes up for renewal or rebidding, assuming that the council has an important role in the process. It doesn't seem like something a council should deal with beyond approving contracts made under the formal bidding process overseen by the procurement office. If the council does, however, have a greater role in most instances, it could decide to leave the towing contract to the procurement office, doing no more than approving its decision, without the council member's participation.
In short, via responsible withdrawal, considering the possibilities of a conflict arising, and creatively dealing with problems, I do think the council member could have kept his seat and his towing business.
The fact that he could not raises a question about the nature of a provision that forbids conflicts. I feel that single conflicts, as opposed to the ongoing conflicts, say, of a developer or lawyer, should not generally be prohibited. Government ethics is not about preventing conflicts, but about dealing responsibly with conflicts.
Robert Wechsler
Director of Research-Retired, City Ethics
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