Indirect Conflicts Involving Appointments
Election time makes public many ethics situations that make valuable case studies. One involves Florida gubernatorial candidate
Rick Scott.<br>
<br>
According to <a href="http://www.naplesnews.com/news/2010/oct/28/rick-scott-solantic-investig…; target="”_blank”">an
article in the Naples (FL) <i>News</i></a>, there is reason to believe that
Scott's company is being or will soon be investigated by the Florida Department of Health (a
complaint has been filed). The investigation relates to practices at a
series of walk-in medical clinics Scott owns. An indirect conflict would arise
if the candidate was elected and appointed a new head of the health
department.<br>
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To his credit, Scott has said exactly how he would handle this matter.
He said, “I’d recuse myself from any involvement. I’m going to appoint
the head of the position, but I’m not going to be involved in any
decisions.”<br>
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The first question that came to my mind is, what decisions would a
governor be involved with other than appointing the head of the
department, who would make all the necessary decisions? In other words,
is the candidate's willingness to withdraw from involvement in
decisions (which would involve a direct conflict) a red herring?<br>
<br>
The second question is, considering that the new head of the health
department would likely decide whether to pursue, or continue pursuing,
the investigation, not to mention how it would be pursued and what
action would be taken based on the investigation report, would
appointment of this department head be seen by the public as
prejudicing the matter in favor of the governor? Would any decision not
to pursue the investigation be respected by the public?<br>
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This is yet another sort of indirect conflict, where a possible benefit to the official would accrue not from directly making a government
decision, but from appointing the person who would make the decision. It's
unlikely that the public would view the indirect conflict any differently than the governor's direct involvement in
the matter, if that were possible.<br>
<br>
The candidate, if elected, would have the opportunity to deal
responsibly with this matter in a way that a sitting governor would
not. If the department head had already been appointed before the
complaint was filed, it would be too much to ask the governor to fire
the department head in order to make everything look above board. The
best solution would be to have an independent investigator appointed by
a neutral party, such as a judge.<br>
<br>
But in the current situation, there is nothing that says that a new
department head must be appointed, assuming the current one would be
willing to stay in office. A health department is not an exceptionally
political place. So the governor's sole involvement in the matter could
be prevented by putting off the appointment.<br>
<br>
A third question came to my mind: Is having new administrations appoint new department heads a matter of
policy or a matter of patronage? But that's a question for a different post.<br>
<br>
The same thing would be true with a local government ethics commission. If a complaint
was filed against a mayoral candidate, the candidate was elected, and
the term of an EC member's term had come to an end, the mayor should
either renew the member's term or let the member remain in office by
not replacing him until the matter involving the mayor comes to an end.<br>
<br>
Of course, the best thing is not to have a mayor involved in selecting
EC members, since complaints are generally filed against mayors, their
appointees, and their political allies.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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