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How to Bring Contractors Into the Ethics Process
Friday, November 19th, 2010
Robert Wechsler
Another interesting ethics matter is raised in the
article on the school board member in Santa Clara County (CA),
which I
discussed earlier today.
The DA's office notes that the contractor, for whom the school board member had worked as a subcontractor, had no obligation to disclose the conflict, so no charges were filed against it. The DA does not take the next step and ask why this obligation doesn't exist.
Had the law required this, and provided for serious penalties against a contractor that failed to disclose, there is no doubt that the conflict would have been disclosed and the trustee would have recused himself. It is important to get those doing business with the local government to be involved in the ethics process. It is a positive thing for those doing business with the city to take responsibility for the conflicts they are involved in, to the extent they know about them. Requiring disclosure from both sides means that official and contractor both have an interest in following rules and procedures; the alternative is a conspiracy not to follow them. When both sides to a relationship are involved, it's far less common for a conflict to fall between the cracks.
This is why the City Ethics Model Code has a Disclosure by Applicants provision, which requires disclosure by anyone who wants the city to take or refrain from an action. The City Ethics Model Code also has a Void Contracts provision, which voids contracts that result in an ethics code violation, and a Debarment provision, which prevents a knowing violator of the code from entering into a contract with the local government for three years.
With a trio of provisions such as these in an ethics code, contractors and developers are not going to play around with conflict situations. They will disclose whatever conflicts they're aware of, ask questions when they suspect a conflict exists, and refuse to talk with officials who have a possible conflict. Responsible handling of conflicts will be ensured in a wide range of situations. Honest officials will be better off, as there will be fewer attempts to tempt them into unethical conduct and fewer ethics problems will arise to undermine the public's trust in them.
So, one wonders, why don't council members demand provisions such as these? One answer is that they don't even know they are a possibility. Another answer is that there are many council members, or at least enough powerful ones who can control the writing of ethics codes, who would rather not have all conflicts disclosed and dealt with responsibly. I would love to hear arguments against having a trio of provisions such as these.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The DA's office notes that the contractor, for whom the school board member had worked as a subcontractor, had no obligation to disclose the conflict, so no charges were filed against it. The DA does not take the next step and ask why this obligation doesn't exist.
Had the law required this, and provided for serious penalties against a contractor that failed to disclose, there is no doubt that the conflict would have been disclosed and the trustee would have recused himself. It is important to get those doing business with the local government to be involved in the ethics process. It is a positive thing for those doing business with the city to take responsibility for the conflicts they are involved in, to the extent they know about them. Requiring disclosure from both sides means that official and contractor both have an interest in following rules and procedures; the alternative is a conspiracy not to follow them. When both sides to a relationship are involved, it's far less common for a conflict to fall between the cracks.
This is why the City Ethics Model Code has a Disclosure by Applicants provision, which requires disclosure by anyone who wants the city to take or refrain from an action. The City Ethics Model Code also has a Void Contracts provision, which voids contracts that result in an ethics code violation, and a Debarment provision, which prevents a knowing violator of the code from entering into a contract with the local government for three years.
With a trio of provisions such as these in an ethics code, contractors and developers are not going to play around with conflict situations. They will disclose whatever conflicts they're aware of, ask questions when they suspect a conflict exists, and refuse to talk with officials who have a possible conflict. Responsible handling of conflicts will be ensured in a wide range of situations. Honest officials will be better off, as there will be fewer attempts to tempt them into unethical conduct and fewer ethics problems will arise to undermine the public's trust in them.
So, one wonders, why don't council members demand provisions such as these? One answer is that they don't even know they are a possibility. Another answer is that there are many council members, or at least enough powerful ones who can control the writing of ethics codes, who would rather not have all conflicts disclosed and dealt with responsibly. I would love to hear arguments against having a trio of provisions such as these.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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