An Official's Possibly Conflicting Interests Are Public Information

Recusal is a two-part process. First, the official discloses his interest in a matter that has or will come before his board or agency. Then, the official does not participate in that matter.

In Tucson, this process was distorted by the involvement of a board attorney. According to an article in Wednesday's Arizona Daily Star, the chair and vice-chair of the Rio Nuevo Multipurpose Facilities District Board, an important development board in Tucson, were concerned about a member's possible conflict of interest and asked the board's attorney for an advisory opinion. The city of 540,000 does not appear to have an ethics officer or commission, so this was the most reasonable alternative.

An Advisory Opinion Shouldn't Change the Recusal Process
The board attorney gave his opinion that the member had a conflict of interest with respect to a hotel project, and the member resigned from the board. The board attorney said that the opinion was protected by the attorney-client privilege and that he could not disclose it without a waiver from the board.

This turns the board attorney into a black box, and makes a request for an advisory opinion another gambit, like that I just wrote about in NYC. The official tells the government attorney, instead of the public, what his interest in a matter is, and then out comes an opinion without the interest attached. Asking an attorney deprives the public of information the official should be disclosing himself.

For this reason, a request for an advisory opinion about whether an interest conflicts with the public interest should come with an implicit waiver. The public should know not only that the board attorney thought the member has a conflict, but what that conflict is. Either the advisory opinion should be made public or the official should declare the interest and recuse himself.

An Official's Interests Are Public Information
The next issue raised by this situation is, Does a decision to resign rather than recuse oneself change the requirement to make the interest public? In other words, can an official get around the disclosure requirement by resigning?

This is a more difficult question. Let's assume the board attorney was not consulted. Should an official with an interest he wants to keep secret be able to do this by resigning? Would that undermine the public's trust in government?

The answer to this is at the heart of annual disclosure. Annual disclosure assumes that an official's interests are public information. The goal of annual disclosure is to let the public know about an official's basic interests, so that if the official does participate in a matter where he has an interest, the public (usually an ethics commission, the news media, or a gadfly) can stop him from doing so. Annual disclosure also allows the public to know whether an official may have too many possible conflicts to responsibly fill his position.

Resignation shouldn't change this. What should have been public should still be public at least up to the moment the official resigns. Therefore, whether the official recuses himself or resigns due to a possible conflict, if he hasn't already disclosed his interest (whether because the local or state governments do not require it, or because he failed to do so), he should do it at the time of recusal or resignation. He should not use either as a way to hide his conflicting interest.

Disclosure of the interest to a government attorney should not change this. In fact, disclosure of information to a public servant makes it that much more public. Public resources were used to aid the official in making his decision, and the interest became part of a written public record. Attorney-client privilege should not trump the public's right to know what the interest is, both in terms of disclosure in an ethics program and in terms of public records laws. In fact, if the attorney had said there was no conflict, it could be argued that the interest should still be disclosed, whereas without an opinion, there would be no obligation to disclose.

What's interesting here is that the official himself did not request the advisory opinion (the chair and vice-chair did), although he must have cooperated in the process by providing the board attorney with the necessary information. The board attorney said that his client was the board, but the board did not act on the opinion, the board member did. The board member not only could have waived any attorney-client privilege, but he had an obligation to do so, since his interest was public information.

A City Without an Ethics Program
What I have written about recusal and disclosure assumes a basic ethics program. Tucson does not appear to have one. Therefore, the players do not have ethics training, there is no independent individual or body to provide advisory opinions, no annual financial disclosure is required, and there is no ethics commission to enforce the rules.

But that does not mean the same ethical obligations do not exist, only that they are not formulated or understood in Tucson itself.

The result is that no one really knows why the board member resigned. The Daily Star article states that he was the major critic of the hotel project. Might he have felt that the board attorney was trying to keep him from participating in it? Was the opinion possibly a political act?

Advisory opinions should never be political acts or be perceived as political acts. No one who is loyal to a board, or to a board chair or anyone else, should ever give an ethics advisory opinion. It is sad that a city the size of Tucson doesn't have an independent ethics officer for officials to go to with a matter such as this.

Robert Wechsler
Director of Research-Retired, City Ethics

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