The Role of Motive in Government Ethics

A conflict situation in my state of Connecticut is instructive regarding a basic concept of government ethics, as well as a basic concept of legislative immunity.

Legislators insist that they require immunity because their motives in making decisions cannot be questioned outside their body. Government ethics, on the other hand, does not consider motive, only conduct and relationships. This is one of the principal reasons why I argue that legislative immunity does not protect legislators from government ethics enforcement.

But when the talk is not about legislative immunity, it turns out to be perfectly okay to discuss a legislator's motives, as well as others' motives.

Background
According to a Jon Lender column in the Hartford Courant this weekend, (Disclosure: the Courant occasionally hires me to write op-ed columns on government ethics issues), the state's house minority leader made a strenuous argument against a bill requiring increased financial disclosures by for-profit nursing homes. His law firm lobbies for the Connecticut Association of Health Care Facilities, which opposed this bill.

The minority leader said that, due to his and his law firm's past disclosures, his employment situation and the lobbying relationships are matters of public record. He also said that he had, in the past, obtained general advice from the office of state ethics, which said that he could participate in matters involving lobbying clients of his law firm (he does not lobby for the firm himself, but as a partner he shares in the firm's profits). In other words, his participation regarding the nursing home bill was perfectly legal. He was not required to say at the time of his participation in the matter that his law firm was working to oppose the bill as an agent of firms who would benefit by its failure to pass.

But government ethics does not involve only what is legally required.

The Minority Leader Defends His Motives
In fact, when the conflict situation was pointed out by a labor leader, the minority leader pointed out that, once, he got a bill shelved even though, he later discovered, his law firm was representing a client in support of the bill. He considered this evidence that his firm's representation of clients had no effect on the positions he takes. That is, he had no motive to help clients who put money in his own pockets.

Although the law says nothing about motive and the motive of a legislator may not be questioned outside the legislature, the minority leader spoke in terms of his motive. In fact, he also spoke in terms of the motives of the labor leader who pointed out his conflict situation. He said that the labor union was disguising its motive for supporting the bill. He said that the union's true motive was "'for the use of unions' to obtain heretofore-unavailable financial information about nursing homes and the businesses they deal with."

Appearance, Not Motive
Both the minority leader's statements that he has no motive to help clients of his law firm and that the labor union had an ulterior motive in supporting the nursing home bill may very well be true. But there is no way for the public to know this. This is why government ethics laws (at least those that follow best practices) do not bother about motive. If you are a government official whose business may benefit from a matter, you are conflicted and should withdraw from participation. It's not a matter of your motive, it's a matter of how your conduct appears to the public.

As for a union leader, he is not a government official and, therefore, may be subject to government ethics law only under lobbying regulations. He has the right to point out conflict situations and, even when there is no legal violation, point out the problems of an official with such a conflict participating in a matter, especially without specifically disclosing the conflict at the time of his participation.

Problematic Participation
If he were to file an ethics complaint, any statement about the legislator's motive should be considered irrelevant. But the fact that his law firm — and the legislator as a member of the firm — benefits financially from lobbying for a client seeking to stop a bill from becoming law, is something that is relevant and, even if not illegal in Connecticut, problematic for the public's trust in the legislature to do what is best for citizens of the state. The fact that this particular legislator has a huge influence in the legislature (in this instance, all members of his party voted with him, apparently, to the public, because he successfully swayed them) makes the minority leader's participation and failure to specifically disclose especially problematic.

Everyone needs to understand that government ethics is not about motive, but about conduct that creates an appearance of impropriety. There is no reason to question motives or to defend motives, either. What officials must do is disclose their conflicts. Even if they are not legally required to, they should also withdraw from participation where they have a conflict that creates an appearance that they are acting for their personal benefit or for that of a client or business associate, even if they are certain that they are not. Their actual motive is irrelevant. That is hard to accept, but it will prevent situations damaging to the public trust, such as this one.

Robert Wechsler
Director of Research-Retired, City Ethics

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