Dating and Minimum Requirements

An example I often use for why government ethics laws are only minimum requirements is that these laws cannot include friendships or romantic relationships, because these are impossible to define with any precision. When a relationship is not included because it is undefinable, this does not mean that one should not treat this relationship like any other special relationship and withdraw from matters involving that individual. One should go beyond the minimum requirements of the law and withdraw. Or even consider whether it is appropriate to have such a relationship, any more than it would be to go into business with a restricted source. It may seem unromantic, but personal relationships do involve more than love and affection. And the last thing a local official wants is jokes about how he's "sleeping with" a contractor, developer, or lobbyist.

In North Carolina, there appear to have been some cases of legislative aides dating lobbyists. To deal with the problem, a laughably inadequate bipartisan bill was drafted, instead of using the situation as a teaching point for the idea that ethics laws (in this case, a basic conflict of interest provision's application to special personal relationships) are, unlike most other laws, only minimum requirements. Here's the draft bill (HB 252):

A covered person shall recuse themselves from any legislative, executive, or official action if that action may result in a reasonably foreseeable financial benefit to a registered lobbyist or liaison personnel, or that lobbyist's lobbyist principal or that liaison personnel's State agency or governmental body, if the covered person is married to the lobbyist or liaison personnel, or the covered person has a current dating relationship or current sexual relationship with the lobbyist or liaison personnel. A dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship; a casual acquaintance or ordinary fraternization between individuals in a business or social context is not a dating relationship.

Ignore, if you can, the bad grammar, the ridiculous lingo (e.g., "lobbyist's lobbyist principal"), and the application of the law only to lobbyists and "liaison personnel," and not to, say, the owner of a contractor. First, consider the definition of "dating relationship." Is it clear to you? Who is to say whether two people are "romantically involved"? People who date often disagree about this, and the line between friendship and romance appears to have become less clear than it used to be. What if you only go out in groups? What if you're effectively having an affair, but not sleeping together? Etcetera, etcetera. And what's this about "over time" (romance can bloom in a week or take years to slowly blossom) and "on a continuous basis" (one breakup and it's no longer a dating relationship? oh, come on). And what is a "casual acquaintance"?

This definition is inadequate. It provides little guidance and it would be very hard to prove in court. It's easy for an official to say that they were just hanging out together. After all, dating is really a relationship that includes the possibility of romance and marriage. It starts quickly, can be on and off, and can be far less important than friendships, which also need to be taken into account when deciding whether to withdraw or not.

But the bill's handling of dating is infinitely better than its handling of sex. That's because there isn't even an inadequate definition of "current sexual relationship." Of course, this is most likely due to good ol' American prudery. But try and define it. No one liked Bill Clinton's definition of "sex," but whose is better? Should it be defined traditionally, in terms of "bases" (first base, etc.)? Frequency? Payment?

No one wants to define a "sexual relationship." And yet it is irresponsible not to if you're going to hold someone to following a law. Is a one-night stand more problematic than a dating relationship that's on and off? Or than a friendship, for that matter?

The moral of the story is . . . No, there are two. One is that the idea of minimum requirements needs to be emphasized, along with the seeking of ethics (not legal) advice when it's not clear to an official whether withdrawal is appropriate or necessary.

Two is that the difference between a pre-existing conflict of interest and a newly created conflict of interest needs to considered. If you are dating someone when you are elected, withdrawal from a matter involving the significant other is the only practical and responsible way to handle the relationship. But when you are elected, you need to consider whether it is responsible to create special personal relationships with individuals who are seeking special benefits from your government or agency. Withdrawal is not the only responsible way of handling this issue. As with gifts, you can refuse rather than withdraw. You can say to the person, "I like you, but it would be inappropriate for us to date or sleep together, or even be close friends." Consider the similar problem of having a lobbyist deeply involved in a campaign. That's a special relationship that is inappropriate. Withdrawal is not a sufficient cure.

Yes, there are sacrifices that government officials have to make to create the appearance that they are not in bed with those who want something from them other than love and affection. But this sacrifice is not one that legislators in North Carolina, or pretty much anywhere, want to make.

Robert Wechsler
Director of Research-Retired, City Ethics

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