Local Government Employees Sitting on Councils

An editorial in yesterday's Star Press of east central Indiana calls for passage of a state law to prevent municipal employees from sitting on a body that oversees their department or agency's budget. The focus is primarily on preventing city and county workers from sitting on city and county councils.

The editorial calls it a "no-brainer" because "it's a conflict of interest to have public employees sitting on fiscal bodies and voting on issues pertaining to their own employment: 'It sends the wrong message, I think, to the public.'"

In addition, this practice "undermines the chain of command and procedures for discipline involving public safety, and more importantly, lessens the faith citizens must have that local governments are acting in the public's interest. The public should have no doubt the person they elect will represent them, and not the firefighters, police or any other government agency."

Finally, the editors ask the question, "What kind of policies would be enacted if a majority of the governing council's members came from the very body they governed?"

These seem like excellent arguments. But are they?

The Possibility of Withdrawal from Participation
The editors' arguments raise some questions they leave unanswered. One question that they do raise – the possibility of having the council member abstain from matters that involve her department or agency – they toss off far too easily by saying, "That doesn't always happen." That problem is easy to deal with. Instead of prohibiting the employee from being on the council, prohibit the employee from participating, as a member of any board, in matters that involve her department or agency, with the penalty for participating being a choice of resignation from one position or the other.

The Relationship Between Council and Employee
Another question raised by the editorial is whether a body that oversees a department or agency's budget actually governs the department or agency, as the editors imply by speaking of the undermining of "the chain of command and procedures for discipline." Do councils stand in a chain of command over departments and agencies? It is my understanding that the mayor, in a strong mayor form of government, or the city manager, in a council-manager form of government, supervise departments and agencies, and that councils are not allowed to get involved in management.

As for discipline, there is no doubt that a police officer should not sit on a police commission that disciplines police officers. This is a problem with teachers and school boards, as well. And, of course, with ethics commissions, which usually have a rule that no employee or official may sit on them.

Union Issues
What about the editors' final question, regarding the policies of a council with a majority of local government employees sitting on it? This could be a problem when it came to approving labor contracts, if all the employees were members of labor unions. But they would likely be members of different unions, approving only the contracts with unions other than their own. They might be sympathetic to unions, but wouldn't that also be true of the voters who elected them? If they wanted to be tough with government unions, they would hardly elect government union members to sit on the council.

The Hatch Act
And then there is the Hatch Act, a federal law that, among other things, says that a local government employee principally employed by a program funded by the federal government "cannot be a candidate for public office in a partisan election."

At first blush, this would seem to support the editors' view. However, the Hatch Act was not an act dealing with conflicts of interest. Note that the Hatch Act only refers to candidacy, not office-holding. The Indiana Supreme Court, in 2009, found that the Hatch Act cannot be applied to a sitting mayor, only to a candidate (see Burke v. Bennett).

The principal goal of the Hatch Act was to prevent patronage problems and the use of federal funds to affect elections. In other words, it was intended to prevent a corrupt election system, not to deal with conflicts of interest.

What Would Justify Such a Law
It takes something this serious to prevent someone from running for office and to prevent the public from voting for whomever it chooses. When the alternative of withdrawal from participation is available, a conflict of interest is not enough to take away the right to run and the right to vote.

If one would oversee the management or discipline of one's department or agency, then there is an ongoing conflict of interest that cannot be easily cured. Therefore, it would be acceptable to prohibit a local government employee from running for mayor. But the council is a policy-making body, and while many people may not want government employees to be making government policy, I do not think there is a serious enough conflict of interest to prohibit this, beyond the Hatch Act's prohibition.

Conflicts of Interest Are Not Necessarily Bad
In any event, it's hardly a "no-brainer." Only someone who believes a conflict of interest is bad, which is not the case, would think this. The reason the editors think this is, most likely, that so many people attack others for having conflicts of interest, rather than criticizing them for not dealing responsibly with their conflicts. As long as a conflict can be (and is) dealt with responsibly, it is acceptable.

Government Employees Acting in the Public Interest
The editors are not alone. In 2007, the Indiana Commission on Local Government Reform, co-chaired by former Gov. Joseph Kernan and Supreme Court Chief Justice Randall Shepard, recommended that such a law be passed, arguing that this situation is "a clear conflict of interest [and] diminishes the faith that citizens must have that local governments act in the public interest." It also raised the chain of command and discipline issue (see p. 37 of the report).

But why can't government employees act in the public interest, especially since it is their obligation to do so (as opposed to, say, a developer or contractor, who would be allowed to sit on a council despite their obligation to further the interests of their partners and shareholders)? I would usually prefer not to vote for a government employee to sit on a council, but I can certainly imagine many situations where I would vote for one.

Other Such Laws
I could only find one state that has a law like this, Minnesota. The law was passed in 2010. It's worded differently, in terms of mayors and city council members not being permitted to be employed full-time by the city. According to the League of Minnesota Cities, the law was based on a similar one involving school boards and those who work for school boards. But the difference is clear as day:  a clerk does not work for the council the way a teacher works for the school board. School boards have limited jurisdiction over one department; councils have broad jurisdiction over a number of departments and agencies. A teacher would have to withdraw from far too many matters; a clerk would not.

The City Ethics Model Code has a provision called "Legislators Employed by the City," which expressly requires recusal under such circumstances. Here is the language and the comment:

§100.2 A member of the legislative body has a conflict of interest with respect to any labor contract to which he or she, or a member of his or her household*, may be a party, and with respect to an appropriation to any city department or agency through which he or she, or a member of his or her household, is employed.

Comment: Some cities require that there be no incompatible or even multiple offices held by an individual, especially a council member, so that this problem could only arise with respect to members of the household. In towns and small cities, it is more difficult to make such requirements, because there are sometimes too few competent and interested people to go around. Also, withdrawal can take care of instances such as those described in this subsection. But explicit restrictions in this area, especially in large cities, can be valuable.

Robert Wechsler
Director of Research-Retired, City Ethics

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