The Cincinnati Situation III - Indefinite Benefits and Proximity
Indefinite benefits, like indirect benefits, are often not dealt with
by ethics codes, and this means that they can cause confusion and controversy. This is one reason I
tend to speak in terms of "possible conflicts," because possible
conflicts based on indefinite benefits can be just as injurious to the
public trust as certain conflicts based on certain benefits.<br>
<br>
In the current situation in Cincinnati, it is not certain whether the
streetcar project will benefit the council member's family firm, nor is
it even certain that the streetcar route will run by or near the family
firm's property, as the council member pointed out in <a href="http://news.cincinnati.com/article/20100430/EDIT02/4300355/Bortz-I-am-n…; target="”_blank”">his
letter
to the editor</a>. However, the great likelihood, based on other such
projects and the intent of this project, is that it will benefit all
nearby properties and businesses.<br>
<br>
The city solicitor has taken the position that the definiteness of the
benefit (or, as he terms it, the "tangibility" of the benefit) is
relevant to whether or not the council member should recuse
himself. According to the <a href="http://news.cincinnati.com/article/20100427/NEWS0108/4280369/Bortz-defi…; target="”_blank”">April
27
<i>Enquirer</i> article</a>, he said that if the streetcar project, as it
moves forward and is defined with greater specificity, creates "a more
tangible, direct financial benefit," then his position on recusal might
change.<br>
<br>
The 2009 state EC opinion effectively took a similar position.
According to the same article, it concluded, "Based on your own
statements and the findings of the feasibility study, it appears that
the streetcar project will have a definite and direct financial impact
on property in which your father has an interest." The implication is
that if the impact was indefinite or indirect, the council member's
situation might be different.<br>
<br>
I think it is best not to consider whether a benefit is definite or indefinite, but rather to look at definiteness in terms of the
probability of benefit. In the current situation, if the
feasibility study says that the project is likely to benefit local
property holders and, in fact, that is an important purpose of the
project, then the probability of benefit is high enough for property
holders to expect a benefit and for a conflict
to exist.<br>
<br>
Similarly, the closer to the streetcar route the property is,
the more probable the benefit. If the family firm's properties were all more
than ten blocks from the proposed route, then it would be reasonable to
say that the benefits were too indefinite for recusal to be required.
But the properties are all within only three blocks, making the
benefits highly probable.<br>
<br>
Since proximity is the most numerical of all the considerations
relating to probability of benefit, for determining whether a conflict exists, many ethics codes set a specific
number of feet from a property or project being dealt with by a
government official or body (I have written three blog posts on proximity rules <a href="http://www.cityethics.org/node/231">1</a> <a href="http://www.cityethics.org/node/444">2</a> <a href="http://www.cityethics.org/node/523">3</a>).<br>
<br>
As for the indefiniteness of the streetcar route itself, this is not an
issue if the principal route being discussed is close to the family
firm's properties. If, for example, only one of five proposed routes goes near
the properties and, as is the current situation, the council has no input into the
selection of the route, the probability of a benefit to the family firm
would be low enough to allow the council member to vote. But if the
route is essentially, although not absolutely, set, or there are two
competing routes, then a council member's participation would allow him
to push for the route to pass near his family firm's properties.<br>
<br>
When the definiteness of a benefit is relatively clear, it should be
treated the
same as a definite benefit. When the benefit is very indefinite, it should be
treated the same as a de minimis benefit. But when it is not too clear
but still likely, it is best to seek
the opinion of an individual or body that is both professional and
neutral, that is, an independent ethics officer or commission. The
provision of professional and neutral ethics advice is
a major reason why it is so important for a local government to have an
independent ethics
officer and/or commission.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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