Should an Ethics Provision Limit an Official's Discretion to Withdraw?

An article in the Bismarck (ND) Tribune this weekend raised the issue of when a board or commission member may withdraw from a matter in which he feels he has a conflict, but where there is not a direct, pecuniary interest. It turns out that, back in 2007, the Burleigh County state's attorney had asked the attorney general for an opinion on this very issue. In that matter, a county commissioner had withdrawn from a discussion of whether or not to pave a road where relatives of his lived.

"Personal" vs. "Direct"
The AG took a very narrow approach. North Dakota law requires disclosure and withdrawal from participation in a matter when a board or commission member has "a direct and substantial personal or pecuniary interest." (N.D.C.C. § 44-04-22).

The AG looked at the definition of each of these words, but since there was clearly no direct pecuniary interest in this matter, the most important word was "personal." He used the Black's Law Dictionary definition of this:  “appertaining to the person; belonging to an individual; limited to the person.”

In the government ethics context, this definition is simply inappropriate. In government ethics "personal" refers to an interest that is not pecuniary, including one's interest in helping one's relatives and business associates.

The problem is that many personal interests are, as in this matter, not "direct," as this word is usually understood. For this reason, in government ethics "direct" is usually applied to pecuniary interests, not to personal interests. But since there is an apparent contradiction between the use of the word "direct" and the use of the word "personal," one could interpret this to mean that an official's interest in helping a relative is a direct interest, that is, it is his personal interest that is direct, not the pecuniary interest involved. (Also note how the use of the term "interest" doesn't work well in this discussion; another reason why I prefer the use of the term "benefit.")

In short, this is a poorly written provision. It is a provision clearly written by someone with an imperfect understanding of government ethics.

And it is also a poor opinion, because it uses an inappropriate definition of "personal," ignores the contradiction between "direct" and "personal," and does not adequately deal with the issue of the official's discretion, instead simply assuming that the statutory provision limits an official's discretion even though there is nothing in it that expressly does this.

Ethics Provisions Should Not Limit an Official's Discretion
Ethics laws are not intended to limit an official's ability to make ethical determinations. Rather, they set minimum requirements.

This statutory provision requires withdrawal when there is a conflict involving a direct interest, but it says nothing about an official's discretion whether to withdraw or not where the interest is neither direct nor pecuniary, but where the official feels there is an appearance of impropriety or a risk of undermining the public trust.

Why shouldn't an official be given the discretion to withdraw no matter how the statutory language reads?

I have seen this issue arise in states that expressly require officials to vote, no matter what. These jurisdictions make constituents' right to have their representatives vote an absolute right, ignoring the government ethics view that it is better that an official with a conflict withdraw from a matter.

Taking into account the AG opinion, North Dakota takes an in-between approach, narrowly limiting the occasions when an official may withdraw. The implication is the same, however:  that the official cannot determine when he has a conflict sufficient to require withdrawal, even if he feels it may be in the public interest to withdraw.

I do not believe that a government should determine that participation in a matter is in the public interest even when the official who is in the midst of the matter feels it is not.

For the sake of completeness, here is the entire statutory provision:

A person acting in a legislative or quasi-legislative or judicial or quasi-judicial capacity for a political subdivision of the state who has a direct and substantial personal or pecuniary interest in a matter before that board, council, commission, or other body, must disclose the fact to the body of which that person is a member, and may not participate in or vote on that particular matter without the consent of a majority of the rest of the body.

Robert Wechsler
Director of Research-Retired, City Ethics

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