Is It Right to Prohibit Conflicts?
According to <a href="http://www.sbsun.com/news/ci_17368046" target="”_blank”">an
article in Friday's San Bernardino <i>Sun</i></a>, a San Bernardino city council member accused
of a conflict of interest resigned. He owned a towing company whose
major source of income is a contract with the city. The contract was
made before he joined the council. According to<a href="http://www.pe.com/localnews/stories/PE_News_Local_D_ndesjardins12.28661…; target="”_blank”">
an article Saturday in the <i>Press-Enterprise</i></a>, the council has been
discussing a plan to do its own towing, and the council member did not
participate at least in the votes (the article says nothing about the
discussions).<br>
<br>
State law does not allow a council member to have a contract that was
approved by the council, even if he was not then on the council.
Therefore, the council member tried to sell his towing business. But he
could not find a buyer. His mother is ill, and he felt compelled to
choose the business over the seat on the council. Was it right to
require him to make this decision?<br>
<br>
There is no doubt that it looks bad for a council member to have a
contract with the city, but if the contract predated his joining the
council, there is no actual conflict. The conflict would arise in three
possible situations, only one of which apparently occurred.<br>
<br>
If a problem happened with the towing company that was serious enough
to merit the council's attention (if that was possible), it would be
hard for the council to discuss its colleague's problems. If the
council would not consider such a problem, then this could not lead to
a conflict.<br>
<br>
If, as happened, the council wanted to consider an alternative to
contracting with towing companies, the council member could easily not
participate. The question is, would the council's decision to stay with
the current situation be seen by the public as helping out its
colleague?<br>
<br>
The most serious problem arises when the contract comes up for renewal
or rebidding, assuming that the council has an important role in the
process. It doesn't seem like something a council should deal with
beyond approving contracts made under the formal bidding process
overseen by the procurement office. If the council does, however, have
a greater role in most instances, it could decide to leave the towing
contract to the procurement office, doing no more than approving its
decision, without the council member's participation.<br>
<br>
In short, via responsible withdrawal, considering the possibilities of
a conflict arising, and creatively dealing with problems, I do think
the council member could have kept his seat and his towing business.<br>
<br>
The fact that he could not raises a question about the nature of a
provision that forbids conflicts. I feel that single conflicts, as
opposed to the ongoing conflicts, say, of a developer or lawyer, should
not generally be prohibited. Government ethics is not about preventing
conflicts, but about dealing responsibly with conflicts.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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