Participating with a Conflict

A conflict controversy in Benson, Arizona shows how important participation can be where there is a conflict, even when an official does not vote. According to an article in the San Pedro Valley News-Sun, the mayor was in escrow to purchase property for which he was seeking to (and successfully did) reduce the time (from six to two months) for rezoning from residential to business. After doing this, he did not vote on the matter. He was also involved in annexing land to the city that he was in the midst of purchasing (the council didn't vote on this), and in participating in plan reviews involving a building he was bidding on ("The investigation revealed that staff felt intimidated by Mayor Fenn, resulting in changes in the plan review of this project.")

The mayor only disclosed one of the conflicts, and he filed that disclosure five months after he began participating in the matter.

The mayor says that, according to the article, "he in no way thought his participation was going to be a problem, and had he known he would have gladly taken a step back." However, "he in no way feels he has broken the law and if charges were to be filed he would fight them."

The city council hired a lawyer to report on the mayor's conflicts, and although the lawyer found substance to three allegations, she emphasized that "the law is very careful to word that [a conflict] has to be substantial. Again, because of those kinds of intricacies of the law, it is very, very difficult to come to the conclusion that there is an absolute violation of these statutory conditions."

If what the lawyer found in her investigation is true, it is clear that the mayor was acting to further his personal financial interests and those of his business associates. Real estate transactions and construction bids certainly involve substantial interests. Why would a lawyer say it is "very, very difficult" to conclude that there is an "absolute" violation of an ethics statute? What, in fact, is an "absolute" violation, as opposed to an ordinary violation?

According to the lawyer, these provisions in the Arizona law are criminal, which would require meeting a "beyond a reasonable doubt" burden and, possibly, a showing of intentionality. Neither has any place, I feel, in a conflict of interest matter.

Robert Wechsler
Director of Research-Retired, City Ethics

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