When Voting Is Damaging, No Matter What the Ethics Code Says
According to <a href="http://www.morningjournal.com/articles/2010/05/03/news/doc4bdf1580b069e…; target="”_blank”">an
article in yesterday's <i>Morning Journal</i>,</a> the Law Director of Lorain,
OH (a city of 70,000), advising a council member, said, “If his
employer had a direct financial interest, he would have a conflict. But
it does not.”<br>
<br>
A council member who was vice president of a regional firefighters
association (a union), although no longer a firefighter himself, wanted
to know if he could vote on a plan to save the jobs of four city
firefighters (he had already participated in the matter).<br>
<br>
Lorain's council members are covered by the<a href="http://www.ethics.ohio.gov/ethicslawrevisedcode.html" target="”_blank”"> state
ethics law</a>. That law does not include the term "financial
interest," nor does it talk in terms of direct and indirect interests.
Here is the basic conflict provision:<br>
<ul>
<span lang="EN">§102.03(D) No public official or employee shall
use or authorize the use of the authority or influence of office or
employment to secure anything of value or the promise or offer of
anything of value that is of such a character as to manifest a
substantial and improper influence upon the public official or employee
with respect to that person’s duties.<br>
</ul>
Conflict provisions don't get much worse than this one. First, the
language is horrible ("influence" twice, "secure," "of such a character
to manifest"). Second, it limits conflicts to things "of value," which
is apparently intended to include only things of financial value
(officials are forced to find the definition elsewhere; to save you
trouble, <a href="http://law.justia.com/ohio/codes/orc/jd_103-3e3.html" target="”_blank”">here
it is</a>). Third, it doesn't answer the question,"of value" to whom? Fourth, it uses
the language of "improper influence," something so vague as to provide
very little guidance (and hard to enforce), and so narrow that it does
not even consider the possibility of pay-to-play, where influence is
not at issue.<br>
<br>
The issue of whose benefit triggers a violation of this provision is
partly answered by another provision. It says expressly that membership
in an organization </span>"shall not be considered, in
and of itself, to be of such a character as to manifest a substantial
and improper influence," and then excludes from this exception officers
of an organization. The provision (or "division" as the law oddly calls
it) continues as follows:</span><br>
<ul>
§102.03(J) ... </span><span lang="EN">This
division does not allow a public official or employee who is a member
of an organization to participate, formally or informally, in
deliberations, discussions, or voting on a matter or to use his
official position with regard to the interests of the organization on
the matter if the public official or employee has assumed a particular
responsibility in the organization with respect to the matter or if the
matter would affect that person’s personal, pecuniary interests.</span><br>
</ul>
Thus, even though officers of an organization can be considered to be
substantially influenced by it, it would not be considered an improper
influence here, because the council member is not directly responsible
for the four firefighters, nor are his pecuniary interests affected.
(By the way, this is the only use of the term "pecuniary interest" in
the ethics law, but it is a common term in state ethics commission <a href="http://search.atomz.com/search/?sp-q=%22pecuniary+interest%22&submit=Se…; target="”_blank”">advisory opinions</a>.)<br>
<br>
But how often is a public official directly responsible for a matter as
an organization officer, and how often will his pecuniary interests be
affected? It is more likely that the organization's pecuniary interests
will be affected (this is the legal director's criterion), but since
unions do not directly benefit from a union contract or from their
members keeping their jobs (they certainly indirectly benefit), this
language, as interpreted by the law director, effectively creates an
exception for unions.<br>
<br>
As I keep saying, <a href="http://www.cityethics.org/content/we-do-not-live-financial-interests-al…; target="”_blank”">people
do not live by pecuniary interests alone</a>. Nor does the public think
only in terms of pecuniary interests. Nor are the provisions of an
ethics code <a href="http://www.cityethics.org/content/two-explanations-why-ethics-laws-prov…; target="”_blank”">the
maximum that is expected of public officials</a>.<br>
<br>
The council member is not influenced by the firefighters association
(at least in any way ordinary people would use the word "influence"),
nor will he benefit financially from the firefighters keeping their
jobs. But their jobs are certainly "of value" to him, as well as to the union, at least in the
public's view of things.<br>
<br>
The fact is that it is in the interest of the firefighters association
to preserve the jobs of its member firefighters, and the council member
is an officer of the firefighters association. That is more than enough
to create a conflict in the eyes of the public. And more than enough to
cause an ethics officer, which is the law director's role here, to
advise a council member to recuse himself, <span>no matter how poor the law's language may
be.</span><br>
<br>
By voting on this matter, the council member brings not only himself
into disrepute, but also the council, the firefighters, and their
union (one commenter to the <a href="http://www.morningjournal.com/articles/2010/05/03/news/doc4bdf1580b069e…; target="”_blank”"><i>Morning
Journal</i> article</a> wrote, "What do you expect from the UNION
brotherhood?"). A vote is not worth all that.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---