Conflicts of Interest

When it comes to government ethics, too often lawyers are nowhere to be seen, unless they are the ones saying that unethical conduct is legal. Far too often, lawyers do not use their knowledge, their strong, independent personalities, and their professional obligations to stand up to, or at least question, those acting unethically.

"Ceremonial function" is one of those terms that is found in many local government ethics codes (but not the City Ethics Model Code). However, it is rarely defined except, occasionally, in advisory opinions. The term is generally used to exclude certain gifts from being either disclosed or considered gifts at all. The result is lots of free, undisclosed tickets to sporting events, especially for mayors, and then a minor scandal.

It's a good thing, especially in this age of fiscal austerity, when a local government affair, such as a retirement party, is not paid for out of public funds. But retirement parties, within reason, are part of any organization's calendar. Better they be reasonable and paid for by taxpayers than the alternative.

As serious as the appearance of impropriety that arises from the council member's family firm seeking TIF money and a tax abatement from the city is the fact that any developer or member of a developer's family sitting on a city council faces not just the occasional ethical controversy, as has been the case in this situation. Such an individual faces an ongoing series of possible conflicts, most of which do not lead to complaints, requests for advisory opinions, or controversies.

The family firm's $100 million development takes this matter beyond ordinary conflicts, due to state and local laws on officials entering into public contracts with their city. What makes this issue far more serious than an ordinary conflict, which can be dealt with responsibly through recusal, is that both state and local law require the official to choose between his government position and an interest in a public contract. It is this far more drastic remedy that has recently escalated emotions surrounding the council member's situation.

Indefinite benefits, like indirect benefits, are often not dealt with by ethics codes, and this means that they can cause confusion and controversy. This is one reason I tend to speak in terms of "possible conflicts," because possible conflicts based on indefinite benefits can be just as injurious to the public trust as certain conflicts based on certain benefits.

A government official's relationships -- to family, employer, business -- are very important to determining whether conflicts exist. Both the type and the directness of each relationship are also important.

A capable individual decides to run for city council against an incumbent who has been on the council since long before the mayor got involved in politics (in other words, the incumbent owes nothing to the mayor and is in no way under the mayor's control). The mayor asks a former mayor to try to convince the candidate to drop out of the race, and allows the former mayor to offer the candidate an unpaid position on a city commission.

According to an article in yesterday's Morning Journal, the Law Director of Lorain, OH (a city of 70,000), advising a council member, said, “If his employer had a direct financial interest, he would have a conflict. But it does not.”

San Francisco's Conflict of Interest code has an unusual provision about voting on one's own conduct or position. You would think this provision goes without saying, but I can assure you it does not.

§3.210. Voting on Own Character or Conduct.