Conflicts: The Devil's in the Verbs
As we know, the devil's in the details. In government ethics codes, this means
the language. In the case I will look at here, the devil's in the
verbs.<br>
<br>
According to <a href="http://www.wtsp.com/story/news/investigations/2014/04/25/conflicts-of-i…; target="”_blank”">an
article on the WTSP-TV website last week</a>, a Florida state
senator who lobbies for a sports team seeking taxpayer subsidies
relating to payments on its sports arena voted on a stadium/arena
subsidy bill. After the TV station asked the senator about his vote
and lack of disclosure of a conflict, the senator "received a
written opinion from the Senate's special counsel, which indicated
he did not need to file a disclosure because, while his client could
benefit from the legislation, 'private gain or loss to your
principal would be speculative.'"<br>
<br>
A look at the ethics code language on which the counsel based his
advice is instructive:<blockquote>
Any state public officer who abstains from voting in an official
capacity upon any measure that the officer <i>knows would</i> inure
to the officer's special private gain or loss, or who votes in an
official capacity on a measure that he or she <i>knows would</i>
inure to the special private gain or loss of any principal by whom
the officer is retained ... shall make every reasonable effort to
disclose the nature of his or her interest as a public record...</blockquote>
The verb combination "knows would" (italicized above)
means that an official who is an agent — in this case a lobbyist —
need not withdraw from participation in a matter from which his
principal (better known as his "client") might benefit. In fact, he
need not even disclose his representation of this client unless the
official "knows" that the client would benefit. If there is any
doubt — which there usually is, especially with regard to a client's
business, about which an agent has less knowledge than of his own
business — the official need not disclose his conflict, even if he
believes that his client will likely benefit, even if his principal
asked him to sponsor the bill, even if the official's intention is
to benefit his client, even if — most important — it looks to all the world that he is trying to benefit his client.<br>
<br>
Because trying to benefit one's client, or being seen as trying to
benefit one's client, does not even require disclosure, when the
relationship with the client comes out, it is not only a problem for
the official, but also an instance of institutional corruption, a
decision by the legislature to hide its member's conflicts. It means
that the public will reasonably see the entire
legislature as conspiring to allow its members to financially benefit by representing those who may benefit from their legislative activity.<br>
<br>
What matters with respect to conflicts of interest is not the
official's knowledge or the certainty of benefits. What matters is
the appearance to the public that an official is seeking to obtain a
benefit for those with whom he has special relationships. Whether
the benefit is certain or whether such a benefit is actually
obtained is irrelevant.<br>
<br>
The Florida legislature's choice of verbs is weak. It is
responsible for the tiny number of disclosures made by Florida
legislators every year. According to the article, last year there
were just 20 disclosures from 40 state senators, and just 9 from 120
state representatives.<br>
<br>
The verb "would" should be changed to what is considered the best practice: "may."
If an official's client "may" benefit, the official should disclose
the conflict and withdraw from participation. For the benefit of the
legislature and of the public's trust in it, he should not be
allowed to be seen trying to benefit his client.<br>
<br>
The Florida approach is damaging to the public trust. At the other end of the continuum of
certainty of benefit, New York City’s conflicts of interest board
has found that there is a
violation if an action has a more than a 0% chance of benefiting an
official or associated
person. The City Ethics Model Code uses the language, "he or she
knows, or has reason to believe, <i>may</i>..." Rhode Island uses
the language, "will or <i>can reasonably be expected to</i>
directly result in an economic benefit." Tulsa says, very simply,
“The possibility, not the actuality, of a conflict shall govern.”<br>
<br>
Unfortunately, since most states use the language of "interest"
rather than "benefit" or "gain," there is no active verb in most ethics
codes. I believe the language of "benefit" is preferable, but only
if it is accompanied by the verb "may."<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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