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Misuse of a Local Office on a Regional Board
Tuesday, October 16th, 2012
Robert Wechsler
One conflict that is difficult to deal with in an ethics code, but
which comes up again and again, is the conflict situation that arises
when a local government official sits on a regional board or holds
another office that has a different constituency than the one he was
elected or appointed to represent.
This issue arose a few days ago, when an attorney hired by the Washington Metropolitan Area Transit Authority to investigate an ethics issue involving a Washington, D.C. council member and transit authority board member filed his report. The investigator found that the council member had deferred a vote on a bid to develop a particular property. Before the next meeting, the council member is said to have held a series of meetings with individuals involved in the bid. He asked the winning bidder to partner with a losing bidder. And he told a principal of the winning bidder, who was bidding on the D.C. lottery as part of a different company, that the council member would consider supporting the lottery bid only if the winning development bidder withdrew its bid.
Let's assume that the council member was protecting the interests of D.C. residents and/or the residents of his district by opposing the development bidder and supporting the lottery bidder, and that he had no personal interest in either matter. Is it appropriate for a council member to push his local constituents' interests, even when the transit authority's staff had determined that the development bidder's bid was the winning bid, that is, that it was in the best interests of the region? And is it appropriate for a council member sitting on a regional transit authority board to try to make such deals behind the backs of his fellow board members, no matter whose interests are involved?
Representing Multiple Constituencies
Regarding the first question, the council member is wearing three hats with respect to just about any matter before the transit authority. Two of the hats are acceptable if the council member is formally representing the city on the regional board, as is the case here. The city's representative need think only of the city's interests, not the region's. Matters will be decided by areas joining with other areas to protect their constituents' interests.
What needs to be dealt with is the third hat, the district hat. If the project is in D.C. or outside of D.C. but in an area that might or might not serve his district, the council member will be conflicted between the interests of his district and the interests of D.C. If the project is in his district, can he possibly put aside his natural duties to his immediate constituents to think of the city's interests?
It is hard to represent multiple constituencies, and it is often inappropriate to represent one constituency on a board that is supposed to represent a different constituency. The best thing is to have an unelected or citywide-elected official represent the city. If a district representative is allowed to represent a city, the city should expressly and clearly state that the representative's duties on the regional board are solely to represent the city, not his district.
The transit authority has in its standards of conduct the following language, quoted by the investigator:
Board Members Acting Independently of a Board
My second question raises a different issue. While it may be appropriate for the council member to speak and vote in favor of or against a particular project or bidder, based on his duty to represent his city, is it appropriate for him to try to undermine a bidder by offering him a deal he could make solely as a member of the council? This is clearly a use of the powers of one office to affect matters that involve another office. But is it a misuse of his council seat?
I think it is. A board member does not negotiate deals, except as part of a board. The investigator got it wrong when he wrote, "Councilmember Graham created the conflict through his own actions of appearing to barter a Metro joint development project with a matter before the D.C. Council." The conflict already existed. The council member used the powers of one office to give him special power in the other office. In other words, he dealt irresponsibly with the conflict he had and that is considered acceptable even by the investigator.
The problem is that while allowing a serious conflict to exist, the transit authority did not require its board members to deal with the conflict responsibly, except by the use of vague and inappropriate language, requiring impartiality and prohibiting the creation of conflicts that already existed. What needs to be done, and the investigator does recommend this, is to have a clear policy limiting the actions of board members with respect to projects that come before them.
Preventing Misuse of Local Office
When officials are permitted to wear two or three hats on a regional board, an ethics code is not sufficient to make them appear to be dealing responsibly with their conflicts. What they can and cannot do must be clearly set out in the law that governs their powers and jurisdiction (rules could also be drafted in the jurisdictions that are represented on the transit authority board). There needs, for example, to be a strong ex parte communications provision. Anyone who communicates with a board member outside of a formal meeting cannot be allowed to participate in the project. A board member who initiates ex parte communications should be dismissed, at least after one warning. For more on ex parte communications provisions, see the appropriate section of my book Local Government Ethics Programs in the Procurement chapter.
Wonderland or Ethicsland?
According to an article in the Washington Post, the council member still doesn't understand what he did wrong. “I continue to feel like Alice falling down the rabbit hole,” he said. “This is just bizarre.” He noted that the report found no violation of the standards of conduct and no evidence of a crime.
In a jurisdiction where there has been no established ethics program, government ethics must seem something like Wonderland. Government ethics is not about crime, it's not even just about laws. It's about dealing responsibly with conflicts. The council member did not create the conflict, but he did deal irresponsibly with it. It's hard to believe that he didn't realize that doing deals behind the backs of his colleagues, using the powers of one office to affect matters dealing with another office, was not the right thing to do. But then, who would he have asked for professional, independent ethics advice in a government that failed to provide an ethics officer (even now, a council member's ethics officer is the council's general counsel, who represented the council member in the transit authority matter, according to Washington Post columnist Colby King, and could, therefore, hardly be considered independent)?
Will this situation be discussed openly and honestly in the District of Columbia, letting all officials and employees know that public discussion of and independent advice on ethics issues are the best way to deal with such matters, rather than expensive (financially and in terms of the public trust) investigations and proceedings? Or will government ethics remain a Wonderland in D.C., as it is in too many cities and counties across the country?
Robert Wechsler
Director of Research-Retired, City Ethics
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This issue arose a few days ago, when an attorney hired by the Washington Metropolitan Area Transit Authority to investigate an ethics issue involving a Washington, D.C. council member and transit authority board member filed his report. The investigator found that the council member had deferred a vote on a bid to develop a particular property. Before the next meeting, the council member is said to have held a series of meetings with individuals involved in the bid. He asked the winning bidder to partner with a losing bidder. And he told a principal of the winning bidder, who was bidding on the D.C. lottery as part of a different company, that the council member would consider supporting the lottery bid only if the winning development bidder withdrew its bid.
Let's assume that the council member was protecting the interests of D.C. residents and/or the residents of his district by opposing the development bidder and supporting the lottery bidder, and that he had no personal interest in either matter. Is it appropriate for a council member to push his local constituents' interests, even when the transit authority's staff had determined that the development bidder's bid was the winning bid, that is, that it was in the best interests of the region? And is it appropriate for a council member sitting on a regional transit authority board to try to make such deals behind the backs of his fellow board members, no matter whose interests are involved?
Representing Multiple Constituencies
Regarding the first question, the council member is wearing three hats with respect to just about any matter before the transit authority. Two of the hats are acceptable if the council member is formally representing the city on the regional board, as is the case here. The city's representative need think only of the city's interests, not the region's. Matters will be decided by areas joining with other areas to protect their constituents' interests.
What needs to be dealt with is the third hat, the district hat. If the project is in D.C. or outside of D.C. but in an area that might or might not serve his district, the council member will be conflicted between the interests of his district and the interests of D.C. If the project is in his district, can he possibly put aside his natural duties to his immediate constituents to think of the city's interests?
It is hard to represent multiple constituencies, and it is often inappropriate to represent one constituency on a board that is supposed to represent a different constituency. The best thing is to have an unelected or citywide-elected official represent the city. If a district representative is allowed to represent a city, the city should expressly and clearly state that the representative's duties on the regional board are solely to represent the city, not his district.
The transit authority has in its standards of conduct the following language, quoted by the investigator:
It is imperative that Board Members in their private financial relationships and in their official conduct strictly avoid engaging in actions which create conflicts of interest or the appearance of a conflict of interest. It is likewise imperative that Board Members act impartially in their official conduct by avoiding any actions which might result in favored treatment or appearances thereof toward any individual, private organization, consultant, contractor or potential consultant or contractor.How can an official elected to represent one constituency not appear to have a conflict when representing another constituency? And how can an elected official, bound to represent his district and his city, act impartially and not give preferential treatment to someone he feels will be most advantageous to his district and his city? It is hard to expect an official not to support a company from his district or a project that will clearly help his district.
Board Members Acting Independently of a Board
My second question raises a different issue. While it may be appropriate for the council member to speak and vote in favor of or against a particular project or bidder, based on his duty to represent his city, is it appropriate for him to try to undermine a bidder by offering him a deal he could make solely as a member of the council? This is clearly a use of the powers of one office to affect matters that involve another office. But is it a misuse of his council seat?
I think it is. A board member does not negotiate deals, except as part of a board. The investigator got it wrong when he wrote, "Councilmember Graham created the conflict through his own actions of appearing to barter a Metro joint development project with a matter before the D.C. Council." The conflict already existed. The council member used the powers of one office to give him special power in the other office. In other words, he dealt irresponsibly with the conflict he had and that is considered acceptable even by the investigator.
The problem is that while allowing a serious conflict to exist, the transit authority did not require its board members to deal with the conflict responsibly, except by the use of vague and inappropriate language, requiring impartiality and prohibiting the creation of conflicts that already existed. What needs to be done, and the investigator does recommend this, is to have a clear policy limiting the actions of board members with respect to projects that come before them.
Preventing Misuse of Local Office
When officials are permitted to wear two or three hats on a regional board, an ethics code is not sufficient to make them appear to be dealing responsibly with their conflicts. What they can and cannot do must be clearly set out in the law that governs their powers and jurisdiction (rules could also be drafted in the jurisdictions that are represented on the transit authority board). There needs, for example, to be a strong ex parte communications provision. Anyone who communicates with a board member outside of a formal meeting cannot be allowed to participate in the project. A board member who initiates ex parte communications should be dismissed, at least after one warning. For more on ex parte communications provisions, see the appropriate section of my book Local Government Ethics Programs in the Procurement chapter.
Wonderland or Ethicsland?
According to an article in the Washington Post, the council member still doesn't understand what he did wrong. “I continue to feel like Alice falling down the rabbit hole,” he said. “This is just bizarre.” He noted that the report found no violation of the standards of conduct and no evidence of a crime.
In a jurisdiction where there has been no established ethics program, government ethics must seem something like Wonderland. Government ethics is not about crime, it's not even just about laws. It's about dealing responsibly with conflicts. The council member did not create the conflict, but he did deal irresponsibly with it. It's hard to believe that he didn't realize that doing deals behind the backs of his colleagues, using the powers of one office to affect matters dealing with another office, was not the right thing to do. But then, who would he have asked for professional, independent ethics advice in a government that failed to provide an ethics officer (even now, a council member's ethics officer is the council's general counsel, who represented the council member in the transit authority matter, according to Washington Post columnist Colby King, and could, therefore, hardly be considered independent)?
Will this situation be discussed openly and honestly in the District of Columbia, letting all officials and employees know that public discussion of and independent advice on ethics issues are the best way to deal with such matters, rather than expensive (financially and in terms of the public trust) investigations and proceedings? Or will government ethics remain a Wonderland in D.C., as it is in too many cities and counties across the country?
Robert Wechsler
Director of Research-Retired, City Ethics
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