Colleges, Knowledge, Gifts to Officials' Relatives, and Advice Regarding Past Conduct

Anonymous

Fri, 12/06/2013 - 09:07

Advisory Opinions

<a href="http://www.miamiherald.com/2013/11/29/v-fullstory/3787585/miami-lawmake…; target="”_blank”">A
recent Miami Herald article</a> describes a case that embodies a number of important government ethics issues, including the conflict issues
that involve local schools of higher education, gifts to officials' relatives and the officials' knowledge of them, an ethics program's jurisdiction over these relatives, and whether government attorneys should provide ethics advice about past conduct. 
 
The article reports on the ways in which a fast-expanding for-profit medical college has apparently been
involved with elected officials and their families. The article says that the college's
founder has made over $170,000 in campaign contributions, it has
hired a member of the state legislature as an attorney, and it has
provided free tuition to that legislator's sister-in-law. 
 
That same legislator sponsored legislation that loosened the
accreditation requirements for physical therapy assistant programs
which, among other things, allowed the college to rapidly expand its
program to five different campuses. The legislation was tacked on to
an unrelated piece of legislation just before it was voted on, and
"could ultimately boost Dade Medical’s revenues by millions of
dollars."

Schools of Higher Education 
Schools of higher education are often seen as neutral members of the
community. Some ethics programs even have such schools' presidents
select the members of their ethics commission. These schools are not
neutral members. They are overseen by and cooperate with state and local governments,
they are major landowners that often seek permits and changes to
city plans, they are major employers whose dealings with unions are
often important local political events, and they are both major
grantees, grantors, and contractees that affect who in a community
prospers. They can affect events and individuals in many ways,
including through the provision of jobs, contracts, and
scholarships. They and their officers, employees, board members, and
alumni can affect elections through their contributions and public
support of candidates. Their professors and professionals often provide expert opinions in government and community matters. 
 
Gifts to Immediate Family Members, and Indirect Gifts 
Equally interesting are issues relating to the state rep's denials
of the conflict situations he did not deal with. After seeking
ethics advice from the house of representatives' general counsel, he said that he had no conflict (1)
because his sister-in-law is not an "immediate family" member, and
(2) because he had no knowledge of her financial-aid status. He
apparently said nothing about the work he did for the college. 
 
The first issue is a common one. In too many ethics codes,
relationships that give rise to a conflict or an illegal gift are limited to a
definition of "immediate family" that falls short of the public's
view of which family relationships give rise to a conflict or illegal gift. I find
it ironic that when someone gives an example of a conflict, they
often speak of giving a contract to one's brother-in-law. This might
be sexist (the assumption being that an official's sister is not the
breadwinner), but it says something important: a benefit to a
sister's husband (or a wife's brother) is considered a benefit to
the household of a member of an official's immediate family, and
that's what matters. 
 
The public understand this perfectly, but many elected officials,
and their legislative aides or city attorneys, fail to manifest this
understanding in the ethics provisions they draft. It is impossible
to believe that this is an oversight. 
 
In fact, the general counsel should have pointed to another part of
the ethics provision that uses the term "immediate family" and to
another ethics provision altogether. The gift provision refers to
gifts made "directly or indirectly," which would include a gift made
to a sister-in-law on behalf of the state rep. The basic gift
definition confirms this by including gifts "accepted by a donee or
by another on the donee's behalf." Did the sister-in-law accept the
free tuition on her brother-in-law's behalf? That is a question that
would require more evidence than the general counsel could have had at
his disposal, because the state rep insisted he knew nothing about the gift (that is, his sister-in-law could have accepted the gift on the state rep's behalf without the state rep knowing). Perhaps, for this reason, the general counsel should
have said that he could not say whether the state rep had violated
this provision. 
 
Advice About Past Conduct 
In fact, the general counsel should have told the state rep that
ethics advice can only be given regarding future conduct. Once
conduct has occurred, it can be dealt with only through an ethics
proceeding. Therefore, the general counsel should not have provided
advice at all on this matter. He should have told the state rep that
only a dismissal of a complaint by the state ethics commission could
determine that the state rep had not violated the ethics code. 
 
Knowledge 
The second denial of a conflict situation is equally problematic.
The general counsel correctly said that knowledge is required for a
gift to be illegal. Knowledge as a requirement is strewn throughout
Florida's ethics code, including its gift provision. This is one of
the many reasons this code is generally recognized as inadequate.
The requirement of knowledge is problematic because there is usually
no way for the public to know whether the official knew or not. Any
official can say that he didn't know, that his family
member failed to tell him. If knowledge is required, this denial can
prevent enforcement. An official can even deny knowledge of benefits given to
him (yes, it happens often). 
 
Therefore, it is not a best practice for knowledge to be a
requirement for ethics enforcement. It should instead be taken into
account when determining the penalty for an ethics violation. 
 
It is worth noting that the one conflict issue that the state rep
certainly knew about — his representation of the medical college —
is the one that he did not speak of to the press. 
 
It is disconcerting that, when the state rep was asked, in a follow-up
interview, whether his sister-in-law had in fact accepted free
tuition to the medical college, he said that he would not ask her
because it would be an invasion of her privacy. “I’m not going to
dig into my sister-in-law’s personal finances. I would never ask her
that question.” 
 
Obligation to Know, or At Least Ask 
That raises an important issue. Does a government official have an
obligation to ask close family members, friends, and business
associates about sizeable gifts they have received from those
seeking benefits from or regulated by their government, as well as
about jobs or work they have accepted from them, or other such
involvements? 
 
Are such questions invasions of privacy or are they public obligations? I
think they are the latter. Officials have an obligation to ask those
with whom they have close relationships, or appear to the public to
have close relationships (a lot of people are not on good terms with
some relatives or, for that matter, business associates), about
their relationships with and possible gifts from restricted sources,
and to let the official know when such gifts or other involvements occur. 
 
It's valuable to look at the these matters from the relative's perspective. Many people
see their relative's public power position as a financial
opportunity, a chance to portray themselves as a way to get to their
relative so that they can get work, jobs, and assorted freebies. What is true of presidents' family members is equally true at the state and local level. High-level officials need to expect that this will happen and deal
with this possibility as responsibly as they can. 
 
Disclosure of Failure to Find Out 
What if an official is told to mind her own business, or she is
simply not in a position to ask due to a falling out of some kind?
It would be valuable to the official and the public to disclose their knowledge problem on an annual disclosure form, to say that he is not in a position to disclose the gifts, relationships, or
interests of his sister-in-law, however relevant they may be. This gives the public warning that the official has no
knowledge of something that could end up causing a scandal, and
protects the official from an accusation of an indirect gift and
from penalties if an ethics violation occurs. It may not be a
complete protection — there might be evidence that the official lied
about his relationship with the relative or business associate — but it will certainly
provide a great deal of protection as well as information to the
public and to restricted sources. 
 
Jurisdiction Over Those With Close Relationships to Officials 
Another issue here is, Should an ethics program have jurisdiction
over those who have close relationships with officials and accept
work, jobs, and gifts from restricted sources? I think they should.
They too need to recognize that these individuals can create some
big scandals even without the participation or even knowledge of the
officials they are related to. Ethics commissions should be
permitted to add these individuals to a complaint against the
official, interview them, and require them to return ill-gotten
gifts. They should also create an online information sheet for such
people, and even offer them training, so that they will recognize
their obligations as well as the damage they can do their
official-relatives. 
 
In short, everyone involved should act like adults who recognize that this
sort of thing is common. They should take responsibility for it, and not say
that conduct is acceptable just because a relative protects her relative-official by keeping her gifts secret, or at least insisting that she did. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Colleges, Knowledge, Gifts to Officials' Relatives, and Advice Regarding Past Conduct

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