How to Handle Misrepresentations of Ethics Advice

It is very damaging when a government official misrepresents ethics advice he has been given. What should an ethics officer or commission do when this happens? In many cases, such advice, especially when it is provided informally, is confidential. When an official makes a public statement about such advice, the EC spokesperson can say nothing but "No comment." This allows the official to say whatever he likes.

This situation was answered skillfully by the Massachusetts Ethics Commission this morning. According to an article today in the Cape Cod News, state senator Daniel Wolf responded to a formal advisory opinion from the state EC not only by saying, "I disagree with this opinion and will be working to rectify what I believe to be an unfortunate conclusion based on a flawed process." This is a reasonable thing to say, and could lead to a valuable debate about a rule that, like many ethics rules, may have damaging unforeseen consequences that could be prevented by a minor amendment.

But the senator did not stop there. He also said that "the commission's staff led him to believe that no such conflict would exist [in] an informal opinion it had provided in advance of his first election to the state Senate in 2010."

When the reporter spoke with the EC's spokesperson, he said that he could not confirm or deny the EC's actions. And in most cases, the matter would have stopped there.

But the Massachusetts EC instead drafted a press release (attached; see below) "to correct inaccurate comments made by Senator Daniel Wolf regarding advice he received from the State Ethics Commission." Unfortunately, the press release does not include these comments, but it does provide its side of the story regarding the 2010 advice:

the Commission’s General Counsel orally provided advice on how the conflict of interest law applied to Senator Wolf. That advice was provided to Senator Wolf’s aide, who had requested advice on Senator Wolf’s behalf.  The Commission’s General Counsel followed up that discussion by summarizing her advice in an email to the same aide, dated November 23, 2010. That email stated in part:  “I also advised you to check whether Cape Air has any contracts with the state, since Mr. Wolf is not allowed to have any interests, direct or indirect, in state contracts.” Senator Wolf did not follow up on that advice, nor did he inform the Commission of Cape Air’s contracts with Massport.

The press release also counters what the senator said by noting that "[i]n his dealings with the Commission, Senator Wolf was never led to believe that no conflict existed; in fact, he was advised that he likely had a substantial problem under the conflict law, and that he would be given specific advice after he provided the Massport contracts."

It wasn't until 2013 that the senator provided the contracts to the EC, and the EC made a formal advisory opinion that said he would either have to give up his stock in Cape Air or resign from his position.

It's worth noting that the general counsel followed up her informal advice with a written statement of that advice, so that there would be no doubt in the future what advice had been given.

Drafting a press release such as this one not only deals well with a misrepresentation of advice (whether intentional or not doesn't matter), but it also makes it far less likely that such misrepresentations will occur in the future (officials will feel obliged to go back to the written advice before speaking about it). Since the senator is running for governor, everyone in the state government, and in the state's local governments (over which the state EC has jurisdiction), will now know about the EC's policy of not allowing such misrepresentations to go unchallenged.

Robert Wechsler
Director of Research-Retired, City Ethics

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