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Personal, Non-Financial Interests
Saturday, February 7th, 2009
Robert Wechsler
One of my pet peeves is that many if not most local government ethics codes limit the
definition of "conflict of interest" to situations where an official's
interest involves money. But there are many personal interests that create a
conflict, even though no money is involved.
I learned this several years ago, before I was involved in government ethics work, when I made a motion to censure the first selectman in my town. He refused to allow my motion to be heard, and I insisted that he had to recuse himself and could not make a decision on whether it should be heard or not, because he had a conflict of interest. The first selectman, a lawyer, disagreed, and he was right. According to the town's code of ethics, there was no conflict, even though he was the sole subject of the motion.
According to an article this week in the Georgina (ONT) Advocate, in Vaughan there is a controversy over a council member's filing of an affidavit in favor of a developer suing the city, and then sitting in on council discussions of the case, without disclosing the fact that he had filed the affidavit.
The council member's attorney argued that there is no conflict according to the province's Municipal Conflict of Interest Act. "In order for it to be a conflict of interest, there has to be a direct or indirect pecuniary interest in the matter. Councillor DiVona has nothing to gain or lose by the outcome of this particular piece of litigation."
And he is right. Taking the side of a developer suing the city does not create a financial interest. So even though there seems to be a conflict (not to mention an opportunity for misuse of confidential information), there isn't one by law.
In Turlock, CA, according to an article in this week's Turlock Journal, the issue being debated is whether a council member should have recused herself from an appeal hearing on a permit for a bar, because of her relationship with the bar's lawyer. Relationships are the most common non-financial interest included in definitions of a conflict. But in this case, because the lawyer was not a relative but, allegedly, a campaign manager, a relationship not included in state or local law, people were applying a common law conflict of interest to this matter.
But no one seems to have been concerned that the same council member voted on whether or not to unseal two confidential memos written by the city attorney on the subject of the council member's conflict. According to the article, "Had the council not approved releasing the memos, Norton could have claimed attorney-client privilege and declined to testify about the content of the memos." The memos were prejudicial to her case.
The council member clearly had a personal interest in the outcome of this vote, but in the midst of a discussion about conflicts, this one seems to have been overlooked.
I welcome stories about non-financial, non-relationship interests that clearly involve conflicts, but which laws often allow. A long list of these interests would be useful for people who want to add personal, non-financial interests to their local government ethics code.
Robert Wechsler
Director of Research-Retired, City Ethics
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I learned this several years ago, before I was involved in government ethics work, when I made a motion to censure the first selectman in my town. He refused to allow my motion to be heard, and I insisted that he had to recuse himself and could not make a decision on whether it should be heard or not, because he had a conflict of interest. The first selectman, a lawyer, disagreed, and he was right. According to the town's code of ethics, there was no conflict, even though he was the sole subject of the motion.
According to an article this week in the Georgina (ONT) Advocate, in Vaughan there is a controversy over a council member's filing of an affidavit in favor of a developer suing the city, and then sitting in on council discussions of the case, without disclosing the fact that he had filed the affidavit.
The council member's attorney argued that there is no conflict according to the province's Municipal Conflict of Interest Act. "In order for it to be a conflict of interest, there has to be a direct or indirect pecuniary interest in the matter. Councillor DiVona has nothing to gain or lose by the outcome of this particular piece of litigation."
And he is right. Taking the side of a developer suing the city does not create a financial interest. So even though there seems to be a conflict (not to mention an opportunity for misuse of confidential information), there isn't one by law.
In Turlock, CA, according to an article in this week's Turlock Journal, the issue being debated is whether a council member should have recused herself from an appeal hearing on a permit for a bar, because of her relationship with the bar's lawyer. Relationships are the most common non-financial interest included in definitions of a conflict. But in this case, because the lawyer was not a relative but, allegedly, a campaign manager, a relationship not included in state or local law, people were applying a common law conflict of interest to this matter.
But no one seems to have been concerned that the same council member voted on whether or not to unseal two confidential memos written by the city attorney on the subject of the council member's conflict. According to the article, "Had the council not approved releasing the memos, Norton could have claimed attorney-client privilege and declined to testify about the content of the memos." The memos were prejudicial to her case.
The council member clearly had a personal interest in the outcome of this vote, but in the midst of a discussion about conflicts, this one seems to have been overlooked.
I welcome stories about non-financial, non-relationship interests that clearly involve conflicts, but which laws often allow. A long list of these interests would be useful for people who want to add personal, non-financial interests to their local government ethics code.
Robert Wechsler
Director of Research-Retired, City Ethics
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