Political Preferential Treatment and Quid Pro Quos
A capable individual decides to run for city council against an
incumbent who has been on the council since long before the mayor got
involved in politics (in other words, the incumbent owes nothing to the
mayor and is in no way under the mayor's control). The mayor asks a
former mayor to try to convince the candidate to drop out of the race,
and allows the former mayor to offer the candidate an unpaid position
on a city commission.<br>
<br>
This is <a href="http://www.politico.com/news/stories/0510/37939.html" target="”_blank”">the Sestak-Obama-Clinton case</a> dropped down to the local level.
It happens all the time. Two questions arise: is this technically
a government ethics issue and, even if not, does it undermine the public's
trust in those who govern?<br>
<br>
<b>Political Preferential Treatment</b><br>
I don't think this is a government ethics issue. The mayor would
receive no benefit were the candidate to drop out of the race, nor
would members of his family, his business associates, etc. He is, of
course, preferring one candidate over another, but mayors prefer
council candidates all the time. This is not the sort of preferential
treatment prohibited by ethics codes, because it has nothing to do with
government services, permits, contracts, or the like. This preference
is purely political.<br>
<br>
Similarly, offering a qualified individual a position on a commission is
also not the sort of preferential treatment contemplated by ethics
codes, and it does no harm to the public interest. The only benefit
goes to the candidate (the same benefit that would occur no matter who
is chosen) and, indirectly, to the incumbent. But the incumbent is not
involved in the transaction, and has no relationship with the mayor
other than being council members together in the past.<br>
<br>
<b>Political Quid Pro Quos</b><br>
However, there is a quid pro quo transaction here, and quid pro quo
transactions are the stuff of bribery. But bribery occurs when someone
who is interested in getting the government to do something to his
benefit offers one or more officials money or goods in order to
convince them to act so as to provide him that benefit.<br>
<br>
Here the "bribe" is being offered to someone who is not a government
official or, if he were a government official, the conduct requested
has nothing to do with his government responsibilities. And the conduct
requested would not in any way benefit the individuals offering the
"bribe."<br>
<br>
In other words, the form is that of a bribe, but the content is not.
This allows people to treat the transaction as a bribe, even when it is
not. Confusing people about what is and is not a bribe is itself an ethical issue, but not a government ethics
issue.<br>
<br>
<b>If the Incumbent Made the Offer</b><br>
What if the incumbent himself had sent a former mayor (or asked the
current mayor to intervene) to try to convince a candidate to drop out
of the race, and promised to do what he could to get the candidate a
position on a commission? Here, there would be a direct benefit to an
individual involved in offering the "bribe" (although in the case of unpaid council
members, the benefit would not be financial and, therefore, would not
be covered by most ethics codes).<br>
<br>
This transaction would, I believe, be
unethical, although it is in a gray area that would usually not be
found to be a violation. Such a transaction goes beyond politics. It
involves the misuse of one's office to help oneself preserve that office
for oneself. It is still not a bribe per se, but it's a transaction
that involves both one's office and a benefit to oneself.<br>
<br>
<b>Undermining the Public's Trust</b><br>
It's time to move on to the second question: although technically not a
government ethics issue, does the original transaction undermine the
public's trust in those who govern? I don't think so. I think the
public is used to politicians supporting other politicians, and doing
what is known as horse-trading when required. On their own or along
with councils and party committees, mayors commonly play a significant
role in the political careers of people in their city. A nomination to
an important commission is, as in any organization, a sign that the
boss approves of the individual's performance.<br>
<br>
The problem is that such approval takes two forms. One is approval of
competence, the other is approval of acting or voting the way the mayor
wants.<br>
<br>
What distinguishes the Sestak situation is that the incumbent is not
someone who votes with the mayor. In fact, in the Sestak case, the
incumbent had been a member of the other major party until very
recently. The transaction was not an attempt to consolidate the
president's power, but an attempt to help someone who had greatly
helped the party by changing party affiliation. If treated honestly and
fairly, the public will see such a transaction not as the mayor using
his position to consolidate his power, but as a way of rewarding an
elected official who had risked a great deal to help the mayor's party.
This is a political deal that in no way harms the public interest.<br>
<br>
But what about a situation where the incumbent is fairly seen as under
the control of the mayor? Although the benefit here is purely
political, there is a direct benefit to the mayor (albeit political),
and he is using his position to keep his man on the council. Even if
the opposing candidate is qualified for the position he is being
offered, the public will reasonably see the transaction as a misuse of
office to preserve one's power in the city. This, I think, does
undermine the public's trust in government and, although it does not
violate an ethics code, should not be done. Nor should such an offer be
made to an unqualified individual just to get him out of the way.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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