Complicity Provisions: Dealing Responsibly with Conflicts

How do you deal with a department head who helps creates a conflict of interest problem that does not apply to him personally? Few ethics codes contain complicity provisions that deal with this problem. The City Ethics Model Code complicity provision begins: "No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code...."

According to an article in today's Connecticut Post, in Stratford, CT (not far from where I live), the fire chief has been accused of appointing to a bid-review committee someone who works for one of the bidders, in fact, for the bidder the committee recommended. There are additional allegations that the bid specifications were changed to ensure the success of this bidder, whose bid was not the lowest.

Why would the fire chief be guilty of anything other than poor judgment? He apparently will gain nothing from the bid (although he did apply for disability the day after he was advised about the termination hearing, so he may be looking for a job). Why should an ethics commission be forced to deal with officials with poor judgment?

Because conflicts often do not occur in isolation and, as in this case, subordinates who have conflicts can use the defense that their boss told them to act when, left to their own devices, they might have recused themselves. In such an instance, both subordinate and superior get off scot-free, just like officials who say they acted on advice of the city attorney.

If it is okay for officials to put others in a position where they have a conflict, or to otherwise contribute to a violation of an ethics code, then the message is that government ethics is only about preventing self-serving, not about dealing responsibly with conflicts. All officials, whether personally involved or not (and especially superiors), should be required to deal responsibly with conflicts, whether theirs or others'. The penalty for complicity will usually be less -- termination seems strong in this case -- but complicity should be dealt with.

And dealt with by an independent, unbiased ethics commission. But in Stratford's ethics code (Disclosure: I once advised the Stratford ethics commission regarding recommended changes to the code), there is no complicity provision.

If you want to seriously undermine the public's confidence in a town's government, let the mayor deal with a problem like this one. That's what's being done in Stratford. This week, there will be a public disciplinary hearing, after which the mayor will decide whether to terminate the fire chief.

There is, apparently, no love lost between the mayor and the fire chief. And it appears that the people of Stratford do not believe that the mayor can make an unbiased decision (take a look at the comments to the article). If the chief is terminated, citizens will believe that it was done for personal rather than professional reasons. This is what ethics programs are intended to prevent.

Complicity provisions seem like they may create problems, but they will likely solve many more by making it clear that dealing responsibly with conflicts, even when you have nothing to gain personally, is an important part of being a local government official.

Robert Wechsler
Director of Research-Retired, City Ethics

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