Making a Gray Area Black and White

Gray areas in local government ethics don't necessarily have to be gray areas.

According to an article last week in the Atlanta Journal-Constitution, a council member whose brother is a lieutenant in the city jail has been very vocal in opposing a plan to lease the jail to the county in which Atlanta sits. It is possible that the council member's brother would lose his job if the lease were approved.

Here is the relevant language in the city's ethics code:

Sec. 2-812. Participation in Contracts. No official or employee ... shall participate directly or indirectly ... when the official or employee knows or with reasonable investigation should know that there is a financial or personal interest possessed by:

(2) One or more members of the immediate family of the official or employee;

According to the city's ethics officer, in an opinion apparently requested by the council member, because the impact on the brother's job status is uncertain, the council member does not clearly have a personal interest in the outcome of the matter. However, she advises that, to be safe, the council member recuse himself on the matter.

The gray area here is the uncertainty of the council member's brother's interest. According to the language of the Atlanta code provision, an official is required to recuse himself only if there is a financial or personal interest, not if there is a possibility, or even a probability, that such an interest exists. This is in contrast to, for example, the City Ethics Model Code provision (§100(1)(a)), which reads, "An official or employee may not use his or her official position or office, or 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..."

The word "may" makes all the difference. It makes the gray area much more black and white.

The reason for doing this is that, to the public, it doesn't matter that the interest is not completely certain (if the probability of any effect is very low, the interest should be considered de minimis). The public sees a council member speaking out to prevent a lease that the mayor says will save the city $12 million a year. The council member might be making excellent arguments against the lease, but the public will question the validity of those arguments, knowing that the job of the council member's brother is jeopardized.

Not only is the council member undermining the public's trust in him, but he is effectively undermining the arguments themselves. It is not in the public's interest, or even in his brother's interest, for the council member to be involved in this matter.

The arguments should be made, but they should be made by someone who will not be seen as protecting a family member. Other council members, or representatives of the jail or the jail workers' union, should be making these arguments.

It's also important to look at the other possibility. What if the council member truly believed the lease was a good thing for Atlanta, but his brother was trying to get him to speak out against it, to protect his job or even because he truly believed the lease is not a good deal. This would put the council member in a difficult position. The requirement to recuse himself takes him out of this difficult position, where his personal interests are in conflict with his political judgment.

Making this gray area black and white is not only in the public interest, but it can also be in the official's interest, as well.

For a very different, although concurring look at this matter, see Christopher Bauer's recent post in his Municipal Ethics News and Views blog.

Robert Wechsler
Director of Research-Retired, City Ethics

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