Making a Gray Area Black and White
Gray areas in local government ethics don't necessarily have to be gray
areas.<br>
<br>
According to <a href="http://www.ajc.com/news/atlanta/councilman-says-hell-vote-467804.html&q…; target="”_blank”">an
article last week in the Atlanta <i>Journal-Constitution</i></a>, a council
member whose brother is a lieutenant in the city jail has been very
vocal in opposing a plan to lease the jail to the county in which
Atlanta sits. It is possible that the council member's brother would
lose his job if the lease were approved.<br>
<br>
Here is the relevant language in the city's ethics code:<br>
<ul>
<span>Sec. 2-812. Participation in
Contracts.</span> No official or employee ... shall participate
directly or indirectly ... when the official or employee knows or with
reasonable investigation should know that there is a financial or
personal interest possessed by:<br>
<br>
(2) One or more members of the immediate family of the official or
employee;<br>
</ul>
According to the city's ethics officer, in an opinion apparently
requested by the council member, because the impact on the brother's
job status is uncertain, the council member does not clearly have a
personal interest in the outcome of the matter. However, she advises
that, to be safe, the council member recuse himself on the matter.<br>
<br>
The gray area here is the uncertainty of the council member's brother's
interest. According to the language of the Atlanta code provision, an
official is required to recuse himself only if there <i>is</i> a financial or
personal interest, not if there is a possibility, or even a
probability, that such an interest exists. This is in contrast to, for
example, the City Ethics Model Code provision (<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC32…; target="”_blank”">§100(1)(a)</a>),
which reads, "An official or employee may not use his or her official
position or office, or take or fail to take any action ... in a manner
which he or she knows, or has reason to believe, may result in a
personal or financial benefit..."<br>
<br>
The word "may" makes all the difference. It makes the gray area much more black
and white.<br>
<br>
The reason for doing this is that, to the public, it doesn't matter
that the interest is not completely certain (if the probability of any effect is very low, the interest should be considered <a href="http://www.cityethics.org/content/de-minimis-big-term-government-ethics…; target="”_blank”">de minimis</a>). The public sees a council
member speaking out to prevent a lease that the mayor says will save
the city $12 million a year. The council member might be making
excellent arguments against the lease, but the public will question the
validity of those arguments, knowing that the job of the council
member's brother is jeopardized.<br>
<br>
Not only is the council member undermining the public's trust in him,
but he is effectively undermining the arguments themselves. It is not
in the public's interest, or even in his brother's interest, for the
council member to be involved in this matter.<br>
<br>
The arguments should be made, but they should be made by someone who
will not be seen as protecting a family member. Other council
members, or representatives of the jail or the jail workers' union, should
be making these arguments.<br>
<br>
It's also important to look at the other possibility. What if the
council member truly believed the lease was a good thing for Atlanta,
but his brother was trying to get him to speak out against it, to
protect his job or even because he truly believed the lease is not a
good deal. This would put the council member in a difficult position.
The requirement to recuse himself takes him out of this difficult
position, where his personal interests are in conflict with his
political judgment.<br>
<br>
Making this gray area black and white is not only in the public
interest, but it can also be in the official's interest, as well.<br>
<br>
For a very different, although concurring look at this matter, see
Christopher Bauer's <a href="http://christopherbauer.typepad.com/municipal_ethics_news_and/2010/04/e…; target="”_blank”">recent
post</a> in his <a href="http://christopherbauer.typepad.com/municipal_ethics_news_and/" target="”_blank”">Municipal
Ethics News and Views blog</a>.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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