Prestige of Office Provisions

Some jurisdictions have an ethics provision entitled Prestige of Office that, among other things, limits work that officials can do outside of government. Here is the language that the Baltimore school district uses (this is essentially the same as the city government's Prestige of Office provision, but with the addition of the phrase "public position," which turns it into a basic misuse of office provision):

An official may not intentionally use the prestige of office or public position for the private gain of that official or the private gain of another.

It's certainly a conflict of interest problem when prestige of office is used to make money through public speaking or advertising ("The Pickup Your Mayor Prefers!"). But these situations can be handled by honararium and endorsement provisions. When a Prestige of Office provision is applied to related work done on the side, as it has been in the Baltimore school district, the issue is moonlighting.

I don't think that ethics programs should regulate moonlighting. I think this is a personnel matter. It is a resource issue more than it is a conflict of interest issue. Permission be sought from the superintendent or a designee. Perhaps, for aggregate annual work over a certain number of hours or certain amount of income, school board permission should be sought. In any event, it's worth looking at how a Baltimore prestige of office matter was handled.

According to a recent article in the Baltimore Sun, in a 2012 matter, on the basis of this provision, the Baltimore city schools ethics panel determined that the school district's chief academic officer could not receive money for training work done for a company that did not do business with the school district. The ethics board said that it was "reasonable to conclude that [the advisee] has been invited to present at SUPES Academy — at least in part — as a result of her position." Since the decision was not made until after she had been paid, she was told to donate her earnings to the school district.

The handling of this matter had some good and bad aspects to it. Unsure if it was legal, the chief academic officer sought advice from the school district's attorney. "The attorney said she was not violating any policies, but they subsequently decided to ask for an opinion from the ethics panel." It isn't clear from this description whether the attorney favored asking the ethics panel for an opinion. If he favored doing this, why would he have provided his own opinion? Perhaps he changed his mind after thinking the matter through. In any event, it is good and unusual for a government attorney to recommend the seeking of an ethics opinion elsewhere. This is what ethics panels are for. In fact, going by the websites, the schools ethics panel provides more advisory opinions than the city's ethics board.

However, the ethics panel took four months to provide an opinion. This is too long. Fortunately, the panel appears to have realized this. An expedited advisory opinion form on the panel's website is dated two days earlier than the date on the advisory opinion. One advisory opinion in January 2013 was made eight days after it was requested. It's good to see that the ethics panel recognized the problem and has done its best to solve it. It might even go further, and allow quick, informal ethics advice.

The other problem was what the official did with the money. The opinion said that all funds, other than reasonable expenses, had to be paid to the school district. But the official instead donated the funds ($4,000) to teachers to pay for buses for field trips. Just because an official earned the money doesn't mean she should be able to determine how it is spent.

According to the article, the same thing happened with a county school district matter, where the schools superintendent did work for the same company. The superintendent said that he intended to donate the funds toward a college scholarship for a county graduate.

If an ethics panel determines that money should be turned over to the school district, the school board or its designee, not the official, should determine how the money is spent.

Robert Wechsler
Director of Research-Retired, City Ethics

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