Conflicts of Interest: Taking a Holistic View

"Passion" is not the first word that comes to mind when one thinks about municipal ethics (but it would be interesting to know what word does first come to mind). And yet passion is what you can find in an article and on-line discussion about a current conflict controversy in Billings, Montana.

At first glance, it seems to be a minor conflict problem (which is what many discussants passionately consider it to be). The mayor's wife is (and was before the mayor's election) an "alternative modes coordinator" for the City-County Planning Department. This means that she is involved in the creation of bike trails in Billings. The conflict issue is: should the mayor recuse himself from any matter that involves bike trails, or only from matters that involve funding of her salary?

An ethics training course could hold a nice little discussion about this situation, but I can't imagine them coming up with as many perspectives and positions as do the Billings council members and residents.

But there is a lot more to the conflict controversy than first meets the eye. The question I will pose at the end of this blog entry is, How can one get past the limited legal issue to deal with the matter as a whole?

One important issue is the fact that although bike trails are hardly controversial, the way they're being created is. And this way is central to the conflict issue. It appears that developers cannot get permits without creating and maintaining bike trails on their property, beyond the usual right-of-way or open space requirement. And people say that this is in lieu of putting aside land for parks. This policy ensures a great deal more bike trails than usual policies do, and less parkland or open space.

There are two other important facts. First, the mayor was formerly chief of police, so that he was an important political player at the time his wife was given the newly-created job (there appears to be no doubt she is highly qualified for the job). However, it is not clear what his (or her) role was, if any, in determining the bike-trail policy for developers (but see the end of this blog entry).

Second, this does not appear to be the first conflict controversy the mayor has been involved in, either in Billings or in Nebraska, where he was sheriff and his wife was a county commissioner.

One council member feels that the mayor is hurting his own cause by participating and voting on trail matters. A councilman feels the mayor is making it awkward for the council, a councilwoman feels the mayor is making it awkward for his wife. One council member feels it's no big deal, and another just wants to put the issue to rest.

There are a couple purely legalistic takes on the conflicts. One mayoral attorney says there's no conflict unless the mayor or his wife benefits personally. Two more went so far as to declare the conflict policy unconstitutional because it deprives the mayor of the duty to vote on matters that do not affect him or his wife (and she could be deprived of a property right).

In addition, the Board of Ethics said, in a nonbinding advisory opinion, that there's no legal reason for the mayor to disqualify himself (but one member said she would in a similar situation). The Board's only requirement is that he disqualify himself if his wife were to testify (a moot point, since she had stopped testifying when her husband became mayor).

The mayor did raise one interesting subissue: would he be able to participate in any subdivision reviews that include trail development? Since trails seem to be included in many such reviews, that might limit him greatly. And since trails would be a minor part of such reviews, recusal would seem to be unnecessary. But it is important to draw clear boundaries on what the trails conflict would require from the mayor in the way of recusal.

The article on this conflict controversy, from which the above information has been taken, drew many anonymous responses. Two agreed that the situation did not pass the "smell test."

Others thought the whole exercise was just nitpicking, that there are many more pressing issues. This is a common response, since few people understand the importance of procedural issues and focus exclusively on substantive issues. This preference for the substantive over the procedural is only dangerous (and professionally irresponsible) when a lawyer or someone else who knows better castigates ethics discussion as petty and unimportant (and sadly, this happens a lot; see my blog entry on intellectual dishonesty).

Others thought conflict talk "hamstrings" the mayor, that the mayor should have more freedom and power than he has, not less. Again, this preference for strong mayors over weak mayors is common, partly because our popular culture focuses exclusively on strong political figures (mirroring our tendency to see political leaders as father figures), and we are used to thinking more about governors and presidents than about local government figures.

It is important, I think, to recognize the effect of form of government issues on ethics issues, because strong-mayor preferences often lead to a view of ethics as an obstacle.

I found the most interesting response to be that of "Puzzled": "I am puzzled why the Mayor would jeopardize 'public perception' in order to vote on trails. There MUST be some sort of pay off for him to do so or he wouldn't continue to push to vote on something so controversial. Is he that unprofessional to choose voting over 'public confidence?'"

This is a typical thoughtful, logical, but generally unspoken response to such a situation. It goes beyond the statement that it's a minor issue, to say that since it's so minor, why doesn't the mayor just decide not to vote on it and thereby put the matter to rest. By not doing so, he is effectively saying that it's not a minor matter to him, and this raises major questions about his conduct.

Of course, hiking trails probably aren't a major matter for the mayor in the ordinary sense, at least not unless he's the swing vote. What are major matters are his loyalty to his wife, protecting his power to decide, and his need to be in the right, even if it means questioning the constitutionality of requiring him to recuse himself. To go that far shows not only irresponsibility by the two lawyers who told him this (if he stated it correctly and the reporter reported it correctly), but also deep insecurity, a lack of basic understanding of both ethics and the constitution, and/or a belief on the part of the mayor that he is above the law (see my blog entry on leadership failures).

Such issues as personal insecurity, a lack of understanding of basic civics issues even on the part of city mayors, and refusal to let government work interfere with family loyalties are often central to ethics decisions, even if they can't be dealt with in ethics codes or by ethics commissions. And since few officials allow or participate in an open discussion of such issues, they rarely appear in print.

The lack of open discussion appears to be important to the feelings of the Billings residents. One notes that "Billings is probably the only city in the state where there is no public input or control into trail location and construction methods." Not only does the mayor appear not to allow public discussion of his conflict, but he also does not seem to allow public discussion of the way trails are formed and built. The fact that his wife's job is to deal with these trails makes this failure to allow discussion a more important ethical lapse than his voting on the matters, unless he is the swing vote (and this is not likely, since the vote on the way trails are formed and built appears to have been made in the past, if it ever actually came to a vote).

The conflict with respect to voting does seem minor. But the conflict with respect to the way the entire issue is being dealt with is not. However, ethics issues are rarely discussed in such macro terms. Too often it's about the legality of particular votes, not about the proper way to handle the issue in general.

Any thoughts on ways to change this, on ways to deal with such things as the failure to allow discussion of an issue close to a politician or administrator's heart? Or is this just a weakness of the ethics process that must be accepted?