Why It is Important to Make It Clear That Conflicts of Interest Are Not Wrong

When I saw the lead headline in Wednesday's New York Times, "In Adopting Harsh Tactics, No Inquiry into Past Use," I thought of local government ethics, even though the article was about torture. Okay, I suppose I spend too much time thinking about local government ethics, but bear with me for a minute.

The C.I.A. used, and the Justice Department approved, interrogation methods that were used in American military training. If the methods are there, in print, in a legitimate document, they must be legitimate, right? But in fact, they were put there originally so that soldiers in the Korean War would know how to deal with such methods, which were being used by the North Koreans, the bad guys.

Local government ethics doesn't have any North Koreans (although it does have a few bad guys). But we do have documents - other local governments' ethics codes - that are considered legitimate because they're there. And many local governments follow them without really thinking about why the language is there, or how it got there. This is very irresponsible, but also very common.

The clearest example of this problem of treating other ethics codes as scripture is the common usage of language that makes conflicts of interest wrong in and of themselves. In a quick flip through a few big-city codes, I found such language in the ethics codes of Atlanta, Jacksonville, Kansas City (KS), Milwaukee, Nashville, San Francisco, San Jose, and Seattle. In a couple of cases (Milwaukee and San Francisco), the problem is only section titles: "Basic Prohibition Against Conflicts of Interest," announces San Francisco. But in the other cases there is a basic provision (in small towns sometimes the only provision there is) that makes conflicts a no-no.

If ethics codes are intended to provide rules for dealing responsibly with conflicts, how can conflicts be wrong in and of themselves? You don't deal responsibly with bribery or theft or murder? That's why they're prohibited crimes. Conflicts aren't wrong, unless they're continuing or affect too much of an official's responsibilities.

One could dismiss these prohibition provisions as just a problem of semantics.  Or argue that you've got to get officials' attention.

But a lot of bad comes out of portraying conflicts as bad. When this is a common belief, and even the law, people get very defensive when someone suggests they have a conflict. They respond, as I've heard them respond so often, "I'm a man of integrity. I wouldn't let a [fill in the blank] affect my judgment."

The phrase "accused him [or, increasingly, her] of a conflict" is nearly in every newspaper article about local government ethics. People are accused of crimes, so having a conflict must be criminal, and the official a bad person. And the argument escalates.

Better an ethics code were to begin with the words, "There is nothing wrong with a conflict. There is only something wrong when an official does not deal with it responsibly. An ethics code is intended to show officials how to deal responsibly with conflicts between their personal and public interests, when they arise."

Here's the more complicated, and probably not quite as effective, way I put it in the City Ethics Model Code's Declaration of Policy, Purpose, and Obligations:

While the vast majority of municipal officials are well-meaning, being well-meaning is not enough. It is important that officials understand the conflicts they confront every day, appreciate their fiduciary obligations to city residents, and recognize the importance of preventing conflicts from occurring, disclosing conflicts when they arise, and withdrawing from any involvement in a matter where they have a conflict (recusing themselves).

Nothing is more important to public trust than having public servants err on the side of disclosing every possible conflict and recusing themselves even where they feel certain they can act impartially.

The public perception of conflicts is so far from this, I think, that it is important to keep emphasizing that government ethics is not about prohibiting conflicts, but about dealing with them responsibly. The principal reason, beyond the correctness of this position, is that when personal honor and integrity are at issue, everything goes wrong.

It's equally important to recognize that just because a provision, such as a prohibition of conflicts, is in thousands of ethics codes, that doesn't make it right. All codes, including model codes such as City Ethics', must be approached critically.

Robert Wechsler
Director of Research-Retired, City Ethics

---