How to Deal with a Conflict at the Center of a Conflict of Interest Program
<b>Update</b>: July 17, 2012 (see end of this post)<br>
<br>
Here's an interesting conflict situation from Concord, NH. According
to <a href="http://concord-nh.patch.com/articles/another-ethics-complaint-filed" target="”_blank”">a
recent article in the Concord <i>Patch</i></a>, a state representative
filed ethics complaints against Concord's mayor and one of the
city's council members. Since the mayor and city manager had not
selected members for the city's ethics board, which was established
pursuant to a September 2011 ordinance, they went ahead and
nominated board members after the first complaint was filed.<br>
<br>
The complainant protested that the mayor should not have selected
the members of a board that would immediately consider a complaint
against him. The mayor did not withdraw his selections and turn over
selection to other individuals or entities, but chose only not to
vote on his nominees, although he did vote on the city manager's
nominees. The council member/respondent also voted on the nominees
who would hear the complaint against him. The complainant filed
another complaint against the council member for having voted, but
accepted the mayor's abstention as sufficient.<br>
<br>
The complainant is wrong. It does not matter whether or not the
mayor or the council member abstained. Withdrawal in this situation
is not only insufficient to correct the conflict situation, it also
effectively violates the ordinance that created the city's ethics
program.<br>
<br>
Here is how the ethics program was conceived. The mayor and city
manager nominated board members, to be approved by the council.
These individuals, and those they appoint and manage, are the
principal individuals subject to the ethics board's jurisdiction.
The council intended that ethics board members selected by the mayor
decide cases involving the mayor, that board members approved by
council members decide cases involving a council member, and that
board members selected by the city manager decide cases involving
the city manager.<br>
<br>
In addition, the council decided that it would have final say in any
case involving one of its members, because the ethics ordinance
provides that, when a complaint is filed, the ethics board only has
the power to make recommendations to the council, which is presided
over by the mayor. If the council had wanted to make an exception
for cases involving one of its members, it would have done so.<br>
<br>
In other words, the mayor and council members are involved in every
aspect of the ethics program, and that is the way they wanted it.
They decided to place a huge conflict right at the cente of the city's
conflict of interest program. It effectively ordained that any
conflict involving the council is perfectly okay.<br>
<br>
An ethics program is all about dealing responsibly with conflicts.
In creating the Concord ethics program, the council dealt
irresponsibly with its own conflicts and with the city manager's
conflict. It did not require any of its members to withdraw from
participating in the selection and approval process, or in a final
decision involving one of its members.<br>
<br>
So, the complaint against the council member for voting on ethics
board nominees should be dismissed. But is that all the ethics board
should do?<br>
<br>
I think the ethics board should use this opportunity to point out
that its members should never have been selected by the mayor or the
city manager, and should not have been approved by the council. The ethics board should also point out that
it is inappropriate for it to make recommendations to the council;
instead, it should have the power to make decisions on its own, although
removal from office should not be a penalty within its power.<br>
<br>
The ethics board should recommend an alternative approach to
selecting its members: <a href="http://www.cityethics.org/node/770" target="”_blank”">nomination by civic
organizations</a>. And it should recommend that the ethics
ordinance also be changed to give it the power to make decisions
without the involvement of the council, or anyone else under its
jurisdiction. This will depoliticize the ethics program, give it the independence necessary to make
its decisions trusted by the public, and remove the huge conflict at the center of the conflict of interests program.<br>
<br>
<b>Update</b>: July 17, 2012<br>
According to <a href="http://concord-nh.patch.com/articles/concord-ethics-board-dismisses-cha…; target="”_blank”">an article in the Concord <i>Patch</i> last week</a>, the ethics board dismissed all the complaints, and refused to allow the complainants to say a word, about either factual matters or procedures. With respect to one complaint, the board took the position that if the council decides to allow one of its members to vote with a possible conflict, the ethics board has no jurisdiction over the matter. Considering that elected officials gave themselves complete control over the ethics process, this makes sense. But the appearance the meeting gave is that the ethics board is weak with respect to the officials it is supposed to oversee, and strong with respect to complainants. This is not likely to increase the public's trust in its officials or obtain its trust in the ethics program.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959