Preferential Treatment - What It Is, What It Isn't, and Why

A controversy currently going on in Fairfield, CT reminded me that one of the more easily misunderstood provisions of an ethics code is the special consideration, preferential treatment, or favoritism provision. The version in the City Ethics Model Code reads as follows:

An official or employee may not grant or receive, directly or indirectly, any special consideration, treatment, or advantage beyond what is generally available to city residents.

A complaint was filed in the Fairfield matter against the town's first selectman (effectively, the mayor) and the town attorney for giving preferential treatment to a developer. This treatment appears to have consisted of acts that helped the developer with respect to a big project in town, including the removal of the conservation director from the project (allegedly without the authority to do so) and replacing him with a consultant. The complaint did not contend that the first selectman or town attorney had any financial interest in the project or the developer, so there was no conflict of interest involved.

The question is, what sorts of preferential treatment are ethics codes meant to deal with? Preferential treatment provisions leave this open, because favoritism can take so many different forms.

The ethics commission decided that what happened in Fairfield was a management decision intended to get the project moving and to prevent litigation. Management decisions often involve preferential treatment, but not the sort preferential treatment provisions were intended to deal with.

In other cases, the preferential treatment can be political rather than ethical. Ethics complaints should not be brought against elected officials who, for example, use their position to appoint members of their parties over other city residents. This might be objected to as cronyism, but it is a political issue, not an ethical issue. However, were there a test to be passed before someone could take a position, and an official allowed a party member to skip the test or ignored his failing score, this is preferential treatment.

Preferential treatment is about how one treats those one favors (including oneself) versus how one treats residents in general (the public). It's about letting friends borrow city equipment or use the city's xerox machines, or using them oneself for personal reasons. Preferential treatment is a major subsection of conflict of interest, the one where an official cannot recuse himself, but must instead, depending on the situation, refrain from acting, act fairly, or disclose his actions. This subsection includes the acceptance of gifts, fees and honorariums, the use of confidential information, political solicitation, some revolving door situations, the misuse of city property and reimbursements, nepotism, and transactions with subordinates.

Preferential treatment is often treated as the poor relation to conflict of interest, but in some of its forms it is the civil sibling of criminal bribery. In bribery, influence has to be proven. Preferential treatment is sometimes bribery without the proof of influence, with all the appearance of bribery, although this is usually denied. Taking large gifts creates the appearance of bribery, as do many revolving door situations, but is almost impossible to prove the intention or fact of influence.

The other side of preferential treatment is misuse of office, using one's power in a way that is not in the public interest, but in the interest of oneself or others. Misusing confidential information, hiring relatives, letting friends use city cars, doing political work on city time and with city property or on city property, when ordinary members of the public can't.

It is important to understand what preferential treatment consists of, and what it does not consist of. And why. Because too often it is either ignored, or stretched to include conduct that is managerial or political, sometimes for the political purposes of the complainant.

Note:  You can't get free access to the Connecticut Post article from which I took much of the information in the first part of this blog entry, but you can read the comments to the article, which provide a strong flavor of what lay behind the ethics complaint in this matter.

Robert Wechsler
Director of Research-Retired, City Ethics

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