How to Deal with a Conflict at the Center of a Conflict of Interest Program
Robert Wechsler
Update: July 17, 2012 (see end of this post)
Here's an interesting conflict situation from Concord, NH. According to a recent article in the Concord Patch, a state representative filed ethics complaints against Concord's mayor and one of the city's council members. Since the mayor and city manager had not selected members for the city's ethics board, which was established pursuant to a September 2011 ordinance, they went ahead and nominated board members after the first complaint was filed.
The complainant protested that the mayor should not have selected the members of a board that would immediately consider a complaint against him. The mayor did not withdraw his selections and turn over selection to other individuals or entities, but chose only not to vote on his nominees, although he did vote on the city manager's nominees. The council member/respondent also voted on the nominees who would hear the complaint against him. The complainant filed another complaint against the council member for having voted, but accepted the mayor's abstention as sufficient.
The complainant is wrong. It does not matter whether or not the mayor or the council member abstained. Withdrawal in this situation is not only insufficient to correct the conflict situation, it also effectively violates the ordinance that created the city's ethics program.
Here is how the ethics program was conceived. The mayor and city manager nominated board members, to be approved by the council. These individuals, and those they appoint and manage, are the principal individuals subject to the ethics board's jurisdiction. The council intended that ethics board members selected by the mayor decide cases involving the mayor, that board members approved by council members decide cases involving a council member, and that board members selected by the city manager decide cases involving the city manager.
In addition, the council decided that it would have final say in any case involving one of its members, because the ethics ordinance provides that, when a complaint is filed, the ethics board only has the power to make recommendations to the council, which is presided over by the mayor. If the council had wanted to make an exception for cases involving one of its members, it would have done so.
In other words, the mayor and council members are involved in every aspect of the ethics program, and that is the way they wanted it. They decided to place a huge conflict right at the cente of the city's conflict of interest program. It effectively ordained that any conflict involving the council is perfectly okay.
An ethics program is all about dealing responsibly with conflicts. In creating the Concord ethics program, the council dealt irresponsibly with its own conflicts and with the city manager's conflict. It did not require any of its members to withdraw from participating in the selection and approval process, or in a final decision involving one of its members.
So, the complaint against the council member for voting on ethics board nominees should be dismissed. But is that all the ethics board should do?
I think the ethics board should use this opportunity to point out that its members should never have been selected by the mayor or the city manager, and should not have been approved by the council. The ethics board should also point out that it is inappropriate for it to make recommendations to the council; instead, it should have the power to make decisions on its own, although removal from office should not be a penalty within its power.
The ethics board should recommend an alternative approach to selecting its members: nomination by civic organizations. And it should recommend that the ethics ordinance also be changed to give it the power to make decisions without the involvement of the council, or anyone else under its jurisdiction. This will depoliticize the ethics program, give it the independence necessary to make its decisions trusted by the public, and remove the huge conflict at the center of the conflict of interests program.
Update: July 17, 2012
According to an article in the Concord Patch last week, the ethics board dismissed all the complaints, and refused to allow the complainants to say a word, about either factual matters or procedures. With respect to one complaint, the board took the position that if the council decides to allow one of its members to vote with a possible conflict, the ethics board has no jurisdiction over the matter. Considering that elected officials gave themselves complete control over the ethics process, this makes sense. But the appearance the meeting gave is that the ethics board is weak with respect to the officials it is supposed to oversee, and strong with respect to complainants. This is not likely to increase the public's trust in its officials or obtain its trust in the ethics program.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959
Here's an interesting conflict situation from Concord, NH. According to a recent article in the Concord Patch, a state representative filed ethics complaints against Concord's mayor and one of the city's council members. Since the mayor and city manager had not selected members for the city's ethics board, which was established pursuant to a September 2011 ordinance, they went ahead and nominated board members after the first complaint was filed.
The complainant protested that the mayor should not have selected the members of a board that would immediately consider a complaint against him. The mayor did not withdraw his selections and turn over selection to other individuals or entities, but chose only not to vote on his nominees, although he did vote on the city manager's nominees. The council member/respondent also voted on the nominees who would hear the complaint against him. The complainant filed another complaint against the council member for having voted, but accepted the mayor's abstention as sufficient.
The complainant is wrong. It does not matter whether or not the mayor or the council member abstained. Withdrawal in this situation is not only insufficient to correct the conflict situation, it also effectively violates the ordinance that created the city's ethics program.
Here is how the ethics program was conceived. The mayor and city manager nominated board members, to be approved by the council. These individuals, and those they appoint and manage, are the principal individuals subject to the ethics board's jurisdiction. The council intended that ethics board members selected by the mayor decide cases involving the mayor, that board members approved by council members decide cases involving a council member, and that board members selected by the city manager decide cases involving the city manager.
In addition, the council decided that it would have final say in any case involving one of its members, because the ethics ordinance provides that, when a complaint is filed, the ethics board only has the power to make recommendations to the council, which is presided over by the mayor. If the council had wanted to make an exception for cases involving one of its members, it would have done so.
In other words, the mayor and council members are involved in every aspect of the ethics program, and that is the way they wanted it. They decided to place a huge conflict right at the cente of the city's conflict of interest program. It effectively ordained that any conflict involving the council is perfectly okay.
An ethics program is all about dealing responsibly with conflicts. In creating the Concord ethics program, the council dealt irresponsibly with its own conflicts and with the city manager's conflict. It did not require any of its members to withdraw from participating in the selection and approval process, or in a final decision involving one of its members.
So, the complaint against the council member for voting on ethics board nominees should be dismissed. But is that all the ethics board should do?
I think the ethics board should use this opportunity to point out that its members should never have been selected by the mayor or the city manager, and should not have been approved by the council. The ethics board should also point out that it is inappropriate for it to make recommendations to the council; instead, it should have the power to make decisions on its own, although removal from office should not be a penalty within its power.
The ethics board should recommend an alternative approach to selecting its members: nomination by civic organizations. And it should recommend that the ethics ordinance also be changed to give it the power to make decisions without the involvement of the council, or anyone else under its jurisdiction. This will depoliticize the ethics program, give it the independence necessary to make its decisions trusted by the public, and remove the huge conflict at the center of the conflict of interests program.
Update: July 17, 2012
According to an article in the Concord Patch last week, the ethics board dismissed all the complaints, and refused to allow the complainants to say a word, about either factual matters or procedures. With respect to one complaint, the board took the position that if the council decides to allow one of its members to vote with a possible conflict, the ethics board has no jurisdiction over the matter. Considering that elected officials gave themselves complete control over the ethics process, this makes sense. But the appearance the meeting gave is that the ethics board is weak with respect to the officials it is supposed to oversee, and strong with respect to complainants. This is not likely to increase the public's trust in its officials or obtain its trust in the ethics program.
Robert Wechsler
Director of Research-Retired, City Ethics
203-859-1959