Voting with a Conflict of Interest Is Not Always Illegal, But It's Never Good for Democracy

"It's a very powerful story of a public official who wanted to do the right thing, who got appropriate advice, and then ended up being punished. He was punished for doing his public duty and voting, just because a political ally was involved. I don't call that a conflict of interest. I call that democracy."

—Joshua Rosenkranz, a New York lawyer representing Sparks City (NV) council member Mike Carrigan in his appeal to the U.S. Supreme Court of a suit attempting to overturn a censure determination by the Nevada Ethics Commission, quoted in today's Reno Gazette-Journal.

The "political ally" was the council member's campaign manager (in two campaigns) and close friend, not just a party colleague. The council member was in the position of deciding whether to vote on a hotel/casino development for which the campaign manager/friend was working as a consultant.

Were he to vote for the development (which he did), it would look like he was favoring his campaign manager/friend's interests. There is a clear appearance of impropriety, even though the relationship did not clearly violate the state ethics code.

Think how it looks: What better way to get a council member's vote than to hire his buddy as a consultant, and what better way to get your buddy work than to let people believe it was a way to your heart? It's a win-win deal, and it happens every day. But it is difficult for an ethics code to deal with this sort of conflict.

Voting when there is this sort of appearance of impropriety is not what I would call "democracy." It is voting with a conflict of interest. The only question is whether the ethics code provision was clear enough so that the council member could have known it was wrong for him to vote. I don't think it was. But I don't think this has anything to do with the First Amendment, as the council member is insisting.

The very unusual code provision language is the only thing in question, not what is a conflict, what is democracy, or whether a council member's vote has anything whatsoever to do with the First Amendment.

Statements like Rosenkranz's are simply not helpful to dealing with this matter. I wish attorneys could be responsible enough to admit that it was not a good decision to vote, but it wasn't clearly illegal. That's very different from portraying the vote as the epitome of democracy.

If you want to know more about the case, I've written four blog posts on the Carrigan case this year. And party briefs are due next week, so there will probably be at least one more blog post soon.

Robert Wechsler
Director of Research-Retired, City Ethics

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