Personal Ethics vs. Government Ethics
Robert Wechsler
Failure to disclose or to recuse oneself, even when it is not legally
required, can lead to some big headaches, as can be seen in Portland,
OR, where a city commissioner voted on a grant to a non-profit
organization where his girlfriend works. Also interesting in this case
is the commissioner's use of personal ethics rather than professional,
government ethics in making his judgment calls.
According to a Portland Mercury blog post on Monday, a candidate running against the city commissioner is making use of this vote in his campaign. The opponent told the paper, "I think this is an ethical breach. The fact that they were dating when this appropriation happened should raise serious questions for voters when they fill out their ballots."
The Law
According to the KATU website yesterday, the deputy city attorney advised the city commissioner in writing (after the fact) that he had not violated any ethics law when he voted on the grant. The basis for his opinion is that state law (which applies to local officials) does not apply to girlfriends, only to spouses and relatives. What the deputy city attorney should have added is that state ethics law is only a minimum requirement. And he should have explained why the law does not apply to girlfriends: because it is impossible to define "girlfriend." Try doing it yourself. The non-application of the law to girlfriends is a definitional problem, and should be viewed as nothing more than that.
In any event, Portland's own ethics code says, "City officials ensure public respect by avoiding even the appearance of impropriety." The city's Explanations and Examples pamphlet contains an excellent explanation of this provision:
The fact is that the commissioner should have disclosed his relationship and recused himself, because if the relationship became public (and it was not a secret), there would be an appearance of impropriety. Recusal would have been best not only for the public, but for him, as well.
But the question this failure to recuse raises for the public in the upcoming election is less about the commissioner's character than about his judgment. He acted unprofessionally. He looked at the ethics of the situation from a personal rather professional perspective. Yesterday, he told the Oregonian:
And just before she spoke, the commissioner effectively recused himself, without disclosing the relationship: he turned the chair over to another member and left the room. It would have shown better judgment to have disclosed the relationship at that time or, better, suggested in advance that someone else at the organization make the speech, if he knew in advance that she would be speaking.
The commissioner's defense of himself also showed poor judgment. Here is his statement, from the KATU website:
The most personal aspect of the commissioner's judgment process was that, it appears, he was just trying to stay out of the way. He didn't want his relationship to jeopardize the organization's grant proposal. He was trying to be decent. He just didn't go about it right, because he was only thinking in terms of personal ethics, not in terms of government ethics.
Appearances
Ignoring the definitional problem in the law, the public knows a girlfriend when it sees one, and this relationship was years old. And it doesn't matter whether the girlfriend benefited from the grant or not, the fact is that she was involved with the grant process by appearing before the commissioner's panel. In this instance, the state ethics law is no more relevant than the unanimity of the vote on the grant. It's the appearance of impropriety that matters.
On the other hand, the opponents are making too big a deal of this whole thing, helping themselves rather than the public. Since they don't really believe that the commissioner was trying to benefit his girlfriend, they shouldn't suggest that this was the case. Instead, they should be using this situation to show how important it is for government officials to take a government ethics approach to possible conflicts of interest, and to put ethics policy — the importance of going out of one's way to appear to be acting in the public interest — ahead of both ethics law and personal inclinations, even when those inclinations (unlike the other candidates') seem ethical.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to a Portland Mercury blog post on Monday, a candidate running against the city commissioner is making use of this vote in his campaign. The opponent told the paper, "I think this is an ethical breach. The fact that they were dating when this appropriation happened should raise serious questions for voters when they fill out their ballots."
The Law
According to the KATU website yesterday, the deputy city attorney advised the city commissioner in writing (after the fact) that he had not violated any ethics law when he voted on the grant. The basis for his opinion is that state law (which applies to local officials) does not apply to girlfriends, only to spouses and relatives. What the deputy city attorney should have added is that state ethics law is only a minimum requirement. And he should have explained why the law does not apply to girlfriends: because it is impossible to define "girlfriend." Try doing it yourself. The non-application of the law to girlfriends is a definitional problem, and should be viewed as nothing more than that.
In any event, Portland's own ethics code says, "City officials ensure public respect by avoiding even the appearance of impropriety." The city's Explanations and Examples pamphlet contains an excellent explanation of this provision:
-
Public service requires a continual effort to overcome cynical attitudes and suspicions about the people in government. For example, conduct which could appear dishonest to a reasonable observer will undermine the public trust even if the conduct is not illegal.
-
Just because an action is legal does not necessarily mean it is right
or good. Similarly, not every action that is wrong needs to be punished
under the law. The role of ethics is particularly to question those actions which are neither
prohibited nor required by law.
The fact is that the commissioner should have disclosed his relationship and recused himself, because if the relationship became public (and it was not a secret), there would be an appearance of impropriety. Recusal would have been best not only for the public, but for him, as well.
But the question this failure to recuse raises for the public in the upcoming election is less about the commissioner's character than about his judgment. He acted unprofessionally. He looked at the ethics of the situation from a personal rather professional perspective. Yesterday, he told the Oregonian:
-
"In retrospect, maybe I should have done that [disclose his
relationship]," he said, but he's shy and the thought of announcing his
private life and outing someone "who is not affected by this grant
whatsoever didn't seem appropriate."
And just before she spoke, the commissioner effectively recused himself, without disclosing the relationship: he turned the chair over to another member and left the room. It would have shown better judgment to have disclosed the relationship at that time or, better, suggested in advance that someone else at the organization make the speech, if he knew in advance that she would be speaking.
The commissioner's defense of himself also showed poor judgment. Here is his statement, from the KATU website:
-
There was no breach of ethics rules here. While I am dating Liz
Burns, we share no financial or household interests, her job was not
dependent on or impacted by the Children's Levy grant in question and
we never discussed the grant application. In fact, my awareness
and deep respect for the important work done by CARES Northwest
predates my acquaintance with Liz, the existence of the Children's Levy
and my service as a City Commissioner. That work is why their proposal
was unanimously approved by the oversight board, having received one of
the highest scores in the funding round.
The most personal aspect of the commissioner's judgment process was that, it appears, he was just trying to stay out of the way. He didn't want his relationship to jeopardize the organization's grant proposal. He was trying to be decent. He just didn't go about it right, because he was only thinking in terms of personal ethics, not in terms of government ethics.
Appearances
Ignoring the definitional problem in the law, the public knows a girlfriend when it sees one, and this relationship was years old. And it doesn't matter whether the girlfriend benefited from the grant or not, the fact is that she was involved with the grant process by appearing before the commissioner's panel. In this instance, the state ethics law is no more relevant than the unanimity of the vote on the grant. It's the appearance of impropriety that matters.
On the other hand, the opponents are making too big a deal of this whole thing, helping themselves rather than the public. Since they don't really believe that the commissioner was trying to benefit his girlfriend, they shouldn't suggest that this was the case. Instead, they should be using this situation to show how important it is for government officials to take a government ethics approach to possible conflicts of interest, and to put ethics policy — the importance of going out of one's way to appear to be acting in the public interest — ahead of both ethics law and personal inclinations, even when those inclinations (unlike the other candidates') seem ethical.
Robert Wechsler
Director of Research-Retired, City Ethics
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