So much of government ethics involves the contrast, and sometimes the
collision, between ethics and law. Too often the personal aspect of
government ethics is overlooked. All three get twisted together in a
very simple matter that occurred last week in the Escondido (CA) city
council, according to
an
article in the North County Times .
Newly elected to the
council was a woman married to a police officer. She asked the city
attorney whether she could vote on matters involving the city police,
and he told her that she could. He said she would only be disqualified
from voting on police matters if the issue was something that affected
her husband specifically, such as a firing, hiring, promotion,
demotion, suspension, or an individual lawsuit.
However, the new council member said that although she would join in
all debates on such matters, she would not vote on them, unless her
vote was needed to break a 2-2 tie. That is, she would participate, but
not vote, except when her vote would determine the decision.
The new councilwoman clearly stated her personal feelings on the issue:
"I don't want to make people uncomfortable and I don't want there to be
any sense of impropriety. But I think it's important for me to
participate in the discussions, and it would be my duty to break a 2-2
tie when there is one."
The president of the police union and one of the council members
supported her completely, citing the city attorney's determination that
she has no conflict of interest.
Another council member said she very clearly has a conflict of interest.
Another council member said, "I tend to err on the side of caution when
it comes to these things, so I wouldn't participate at all. But I
support her in her decision."
The final council member isn't quoted as saying anything. But Roman
Porter, executive director of the state Fair Political Practices
Commission, said it would be odd to debate an issue and not vote on it.
"We don't make a distinction between the vote and the discussion
leading up to it. It's a continuum."
The
state law on recusal is clear:
§ 87105. Manner of
Disqualification. (a) A public official who holds an office specified
in Section 87200 who has a financial interest in a decision within the
meaning of Section 87100, shall, upon identifying a conflict of
interest or a potential conflict of interest and immediately prior to
the consideration of the matter, do all of the following:
(1) Publicly identify the financial
interest that gives rise to the conflict of interest or potential
conflict of interest in detail sufficient to be understood by the
public, except that disclosure of the exact street address of a
residence is not required.
(2) Recuse himself or herself from discussing and voting on the matter,
or otherwise acting in violation of Section 87100.
(3) Leave the room until after the discussion, vote, and any other
disposition of the matter is concluded, unless the matter has been
placed on the portion of the agenda reserved for uncontested matters.
(4) Notwithstanding paragraph (3), a public official described in
subdivision (a) may speak on the issue during the time that the general
public speaks on the issue.
The city attorney says there is an exception to this rule when the
conflicting interest involves a government salary, because "governments
do not have the profit motives of private businesses that pay
salaries." I couldn't find this exception, but assuming that it exists,
the reason he states is meaningless. The conflict has nothing to do
with the government's lack of a profit motive, it has to do with a
government employee's interest in his or her salary, pension, etc.,
which is exactly the same as any employee's.
But what is interesting here is how different the personal reactions of
the individuals are. The new council member effectively creates her own
rule, and yet she is supported by individuals who respect the city
attorney's statement of the state rule. One council member says that
the new council member's personal feelings about the issue are
controlling, even when the council member's own personal feelings are
very different. And one council member sees it as a clear conflict of
interest, no matter what the law may say.
In short, those looking only at the law see no conflict of interest at
all. But everyone else, thinking ethically rather than legally, sees a
conflict, and yet personally, they feel different about how it should
be handled. Where the law rationally treats participation and voting
the same way, three of four council members think
it's fine to treat them different (even if one of them wouldn't treat
them different herself). Where the law irrationally excludes government
salaries from constituting an interest that could conflict with
government service, only one council member protests. Among law,
ethics, and personal feelings, personal feelings were victorious.
Not only is all politics local, all politics is also
very personal. Why should ethics be any different?
Robert Wechsler
Director of Research, City Ethics
203-230-2548
