When Voting Is Damaging, No Matter What the Ethics Code Says

According to an article in yesterday's Morning Journal, 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.”

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).

Lorain's council members are covered by the state ethics law. 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:

§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.

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, here it is). 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.

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 "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:

§102.03(J) ... 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.

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 advisory opinions.)

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.

As I keep saying, people do not live by pecuniary interests alone. Nor does the public think only in terms of pecuniary interests. Nor are the provisions of an ethics code the maximum that is expected of public officials.

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.

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, no matter how poor the law's language may be.

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 Morning Journal article wrote, "What do you expect from the UNION brotherhood?"). A vote is not worth all that.

Robert Wechsler
Director of Research-Retired, City Ethics

---