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A Miscellany
Friday, February 11th, 2011
Robert Wechsler
Ethics Reform as Part of a Financial Assistance Deal
Earlier this week I wrote about the application of Trenton's pay-to-play ordinance in a case involving an Atlantic City law firm. According to an article in Wednesday's Press of Atlantic City, a similar pay-to-play ordinance has been unanimously approved by the Atlantic City council, which four years ago had voted down a pay-to-play ordinance.
Why the unanimous approval this time around? It is the result of a deal with the state's Department of Community Affairs, which according to its website is an "agency created to provide administrative guidance, financial support and technical assistance to local governments, community development organizations, businesses and individuals to improve the quality of life in New Jersey."
The deal is based on assistance with the city's large budget shortfall, in other words, money to save the day. In addition to the pay-to-play ordinance, the DCA insisted that the city could not approve professional service contracts or hire or promote employees without the DCA's blessing. The recession's hit to local governments, already burdened by irresponsible pension plans, might have created an opening for ethics reform over the dead bodies of local officials who have only scorn for it.
Willfulness and Government Ethics
The result of a Palm Beach County (FL) ethics proceeding was both good and bad. According to an article last week in the Sun-Sentinel, a county commissioner violated the gift provision by accepting tickets to a development board gala from someone who has hired lobbyists on land-use issues before the county. The commissioner said he was thinking only of the giver's paving business, not his property development. And he reported the gift, as required by state law.
Because of his stated ignorance of the giver's status, and his disclosure of the gift, the EC gave him only a "letter of instruction," which told him to "be more diligent in the future about investigating the source of any gift and to conform his activities." And the commissioner reimbursed the giver for the cost of the tickets.
This was a good result. However, the EC's executive director says the county is considering changing the standard for a gift violation by adding the word "willful." This, I think, is wrong.
Government ethics violations, unlike criminal violations, should not require proof of willfulness or knowledge. One reason is that it is very difficult to establish this. We don't really know what the commissioner knew, only what he says he knew.
The second reason is that government ethics does not usually require knowledge or motive. These may be relevant to the type and amount of penalty, but not to whether there is a violation or not. If you mistakenly leave a property you own off your disclosure statement, that is no different than if you were trying to hide it, for the purposes of government ethics. If you accept a gift, it doesn't matter if you agreed to a quid pro quo or not. In return, fines are relatively small and no one goes to prison.
Government ethics is not about crime, but about dealing responsibly with conflicts, and part of that is asking anyone who gives you a gift of any value (in this case $400) whether, directly or indirectly, he is doing or seeking business with or trying to obtain permits from the county. That doesn't require much. If you are unwilling to do it, that is enough to establish a violation. If a giver lies to you, then you should consider not accepting gifts from anyone you don't know very well. Is that really such a great sacrifice?
Indirect Interest or Appearance of Impropriety?
According to an article in yesterday's Glenwood Springs (CO) Post Independent, there is a big controversy in Carbondale regarding whether a member of the town's board of trustees has an indirect interest in a development in which some of his partners from an earlier development project, which went nowhere, are participating. It appears that many people opposing the current development are trying to get the trustee to recuse himself, and the board itself has split 3-3 in a vote on recusal.
A year ago, the trustee disclosed his relationship with the development, and the town attorney said that he had no direct interest in the development, which is clear. But does his relationship constitute an indirect interest, and does it matter, as the trustee insists, that those calling for his recusal are doing so because he supports the development, that is, for political rather than ethical purposes?
This is a difficult case. A former partner among many on a single development that never got off the ground is not necessarily a close relation who would merit special treatment or that, by benefiting the partner, would give the official any personal satisfaction. But a few former partners staying together on a second development creates at least a stronger appearance that this is a group the trustee is a part of and, possibly, would like to remain part of after he leaves the board. If he were to speak out or vote against the development, this could lessen his chances of being asked to participate in future developments. This is not an indirect benefit, however, but an indefinite benefit.
Unfortunately, everyone is talking only in legal terms, when this not a legal issue. What is important here is not whether there is a benefit to the trustee that is indirect or indefinite. What is important here is that a large segment of the public appears to reasonably think that it is the trustee's group of fellow investors who is behind this development, and that the trustee is favoring his fellow investors.
As for the political nature of the call for the trustee's refusal, this too is unfortunate. No one should call for an official to deal responsibly with a conflict just because they want to get rid of his vote. If neutral members of the public who are told the details of the issue and taught the basic concepts (as opposed to the laws, which are merely minimum guidelines) of government ethics do not care that the trustee participates in this matter, then there may not be an appearance problem. But I would be surprised if they didn't care.
What the trustee said about the political nature of the call for his recusal is wrong: "For me to recuse myself now is wrong." Two wrongs do not make a right. Due to the appearance of impropriety here, the trustee should bite the bullet and withdraw from the matter, not just from voting on it.
Robert Wechsler
Director of Research-Retired, City Ethics
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Earlier this week I wrote about the application of Trenton's pay-to-play ordinance in a case involving an Atlantic City law firm. According to an article in Wednesday's Press of Atlantic City, a similar pay-to-play ordinance has been unanimously approved by the Atlantic City council, which four years ago had voted down a pay-to-play ordinance.
Why the unanimous approval this time around? It is the result of a deal with the state's Department of Community Affairs, which according to its website is an "agency created to provide administrative guidance, financial support and technical assistance to local governments, community development organizations, businesses and individuals to improve the quality of life in New Jersey."
The deal is based on assistance with the city's large budget shortfall, in other words, money to save the day. In addition to the pay-to-play ordinance, the DCA insisted that the city could not approve professional service contracts or hire or promote employees without the DCA's blessing. The recession's hit to local governments, already burdened by irresponsible pension plans, might have created an opening for ethics reform over the dead bodies of local officials who have only scorn for it.
Willfulness and Government Ethics
The result of a Palm Beach County (FL) ethics proceeding was both good and bad. According to an article last week in the Sun-Sentinel, a county commissioner violated the gift provision by accepting tickets to a development board gala from someone who has hired lobbyists on land-use issues before the county. The commissioner said he was thinking only of the giver's paving business, not his property development. And he reported the gift, as required by state law.
Because of his stated ignorance of the giver's status, and his disclosure of the gift, the EC gave him only a "letter of instruction," which told him to "be more diligent in the future about investigating the source of any gift and to conform his activities." And the commissioner reimbursed the giver for the cost of the tickets.
This was a good result. However, the EC's executive director says the county is considering changing the standard for a gift violation by adding the word "willful." This, I think, is wrong.
Government ethics violations, unlike criminal violations, should not require proof of willfulness or knowledge. One reason is that it is very difficult to establish this. We don't really know what the commissioner knew, only what he says he knew.
The second reason is that government ethics does not usually require knowledge or motive. These may be relevant to the type and amount of penalty, but not to whether there is a violation or not. If you mistakenly leave a property you own off your disclosure statement, that is no different than if you were trying to hide it, for the purposes of government ethics. If you accept a gift, it doesn't matter if you agreed to a quid pro quo or not. In return, fines are relatively small and no one goes to prison.
Government ethics is not about crime, but about dealing responsibly with conflicts, and part of that is asking anyone who gives you a gift of any value (in this case $400) whether, directly or indirectly, he is doing or seeking business with or trying to obtain permits from the county. That doesn't require much. If you are unwilling to do it, that is enough to establish a violation. If a giver lies to you, then you should consider not accepting gifts from anyone you don't know very well. Is that really such a great sacrifice?
Indirect Interest or Appearance of Impropriety?
According to an article in yesterday's Glenwood Springs (CO) Post Independent, there is a big controversy in Carbondale regarding whether a member of the town's board of trustees has an indirect interest in a development in which some of his partners from an earlier development project, which went nowhere, are participating. It appears that many people opposing the current development are trying to get the trustee to recuse himself, and the board itself has split 3-3 in a vote on recusal.
A year ago, the trustee disclosed his relationship with the development, and the town attorney said that he had no direct interest in the development, which is clear. But does his relationship constitute an indirect interest, and does it matter, as the trustee insists, that those calling for his recusal are doing so because he supports the development, that is, for political rather than ethical purposes?
This is a difficult case. A former partner among many on a single development that never got off the ground is not necessarily a close relation who would merit special treatment or that, by benefiting the partner, would give the official any personal satisfaction. But a few former partners staying together on a second development creates at least a stronger appearance that this is a group the trustee is a part of and, possibly, would like to remain part of after he leaves the board. If he were to speak out or vote against the development, this could lessen his chances of being asked to participate in future developments. This is not an indirect benefit, however, but an indefinite benefit.
Unfortunately, everyone is talking only in legal terms, when this not a legal issue. What is important here is not whether there is a benefit to the trustee that is indirect or indefinite. What is important here is that a large segment of the public appears to reasonably think that it is the trustee's group of fellow investors who is behind this development, and that the trustee is favoring his fellow investors.
As for the political nature of the call for the trustee's refusal, this too is unfortunate. No one should call for an official to deal responsibly with a conflict just because they want to get rid of his vote. If neutral members of the public who are told the details of the issue and taught the basic concepts (as opposed to the laws, which are merely minimum guidelines) of government ethics do not care that the trustee participates in this matter, then there may not be an appearance problem. But I would be surprised if they didn't care.
What the trustee said about the political nature of the call for his recusal is wrong: "For me to recuse myself now is wrong." Two wrongs do not make a right. Due to the appearance of impropriety here, the trustee should bite the bullet and withdraw from the matter, not just from voting on it.
Robert Wechsler
Director of Research-Retired, City Ethics
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