Proximity Rules

Some towns have proximity rules, that is, rules that require officials to recuse themselves from any matter dealing with property within a certain distance of property they own or rent. But it is hard to have a set number of feet or yards. A distance appropriate to an urban environment is very different from one appropriate to a rural environment.

There are considerations to balance here. On one side, there is the good of making ethical guidance as clear as possible. On the other side are several bads. It is not good to have too many detailed guidelines, because this complicates an ethics code and makes it hard to read and remember. It is not good to limit conflicts (apparently or in reality) to such concrete instances: conflicts cannot be exhaustively described (is there no conflict when someone's property is twenty feet further away than the rule provides but blocks one's view?). And what happens when an individual does not realize that property is within the proximity rule? A party would have to be required to disclose a property's distance from the property of every official that may participate in discussions regarding the property.

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In Telluride, Colorado, a clear proximity rule (150 feet) didn't do the trick. According to an article in the Watch News and another in the Telluride Daily Planet, the chair of the town's Historic and Architectural Review Commission was found to have technically violated the town's proximity rule, but not to be subject to even a reprimand because he did not willfully or knowingly violate it. The matter involved the expansion of a food market to within 150 feet of the chairman's property. To make the rule work, someone would have to measure and communicate the exact distance.

This could be prevented by a reason-to-believe rule. If you live within, say, 300 feet of a market, wouldn't you have reason to believe that its expansion might be toward you, so that it reached 150 feet?

This is a lesson in the frustration of having a clear rule: when someone ignores it, he can argue that he didn't know the distance or didn't know the rule. How many rules can anyone remember? How much grunt work must one do to be ethical? And yet everyone knows that people have a special interest in nearby businesses expanding, because it affects the value of their property. The rule overshadows the spirit and purpose of the code.

There is also a good lesson here about the importance of an ethical environment. When the chair of a commission does not take upon himself the responsibility for knowing the ethics rules and acting ethically, when he does not consider himself responsible for asking questions or asking for disclosure, when he does not readily admit to a special interest in such a nearby business expanding, and when he allows such a matter to go to the Ethics Commission instead of instantly admitting his error, then he is sending a message to his commission's members, and to the town, a message that is more clear than the proximity rule: our town's leaders do not take our ethics rules seriously. This undermines not only the particular rule, but the entire code.

For the reasons stated above, I am not in favor of detailed rules such as a proximity rule. In addition, once you open this pandora's box of specific rules, where do you stop? How do you not make an ethics code unwieldy?

What I am in favor of, however, are criteria and examples, and proximity should be presented as an issue. Not as a distance, but as a relevant issue to be taken into consideration in determining if you have a possible conflict of interest that should be dealt with by recusing yourself.

No one can argue that proximity does not create an appearance of bias. As with other sorts of conflict, where there is an appearance of bias, it is best to recuse oneself for this reason, even if you can make arguments that others are similarly situated or that you can be unbiased about the particular matter.

Robert Wechsler
Director of Research-Retired, City Ethics