How Massachusetts Handles Favors and Favoritism

In my recent blog posts about Gwinnett County, especially <a href="http://www.cityethics.org/content/gwinnett-county-ethics-reform-i-failu…; target="”_blank”">the
first</a>, I
spoke about how the problem of not following formal processes is a
serious government ethics problem, but is often not covered by ethics
codes. The Massachusetts Ethics Commission has recently entered into
disposition agreements with a member of a town's three-member board of
assessors and the town's tax collector involving just such a failure to
follow
formal processes (see <a href="http://www.mass.gov/?pageID=ethpressrelease&L=1&L0=Home&sid=Ieth&b=pres…; target="”_blank”">the
EC's press release</a>). In this situation, as in Gwinnett County, the cause of the failure was doing a favor for a friend. The difference is that the Massachusetts ethics code has a provision that applies to this situation, and the Massachusetts code applies to local as well as state officials.<br>
<br>

According to <a href="http://www.mass.gov/?pageID=ethterminal&L=5&L0=Home&L1=Opinions+and+Rul…; target="”_blank”">the
assessor board member's disposition agreement</a>, the board member
helped a couple prepare an application seeking a lower assessment on
their house. The couple included a letter with their application saying
that the board member had helped them, and when the application came
before the board, the member disclosed this fact, too. But then he
spoke in favor of the application. One of the other two members said
that the couple's friend should recuse himself, but then the board did
not deal with the application.<br>
<br>
The process is that two of the three members of the board of assessors
approve an application, then the Assessing Department fills out an
abatement certificate, which is signed by the board members. But this
application was not voted on and was not sent to the Assessing
Department. The board member filled out the certificate and signed it,
as well.<br>
<br>
Then the certificate is given to the tax collector, who adjusts the
assessment. The tax collector, who was a friend of the board member,
did him a favor and processed the abatement, despite the fact that the
proper process was not followed.<br>
<br>
These friendly, helpful acts are common to everyday life outside of
government. But government officials and employees are not supposed to
do friends favors like this. But how can an ethics code let them know
this?<br>
<br>
Of course, there is no "don't do favors" or "failure to follow process"
provision in the Massachusetts ethics code. But Section 23(b)(2)(ii) prohibits municipal
employees from knowingly, or
with reason to know, using or attempting to use their official
positions to
secure for themselves or others unwarranted privileges or exemptions
which are
of substantial value and which are not properly available to similarly
situated
individuals. (for the exact language, see <a href="http://www.mass.gov/ethics/laws-regulations-and-forms/conflict-of-inter…; target="”_blank”">the
Mass. Conflict of Interest Law</a>)<br>
<br>
Many ethics codes do not contain a misuse of
office or preferential
treatment provision such as this. They tend to be focused on interests
rather than benefits or privileges. Neither the board member nor the
tax collector had any financial interest in this matter, and their
interest, as friends of the couple, would not show up in a definition
of "interest," because it is very difficult to define "friend."<br>
<br>
And yet it isn't the sort of relationship they had with the couple that matters here, it is what
they did to help the couple (which they would not have done for anyone),
as well as what they did not do, which is follow the formal process.<br>
<br>
Preferential treatment provisions don't work with "interest" language. When you drop the "interest" language in favor of "benefit" language, then you don't have to
define "friend" or anyone else who gets the benefit. If someone is
given preferential treatment such as this, it is an ethics violation.
It is clear that what these two individuals did was unethical and a
violation of §23(b)(2)(ii). There is no vagueness problem in the
guidance the provision provides, and it is relatively easy to enforce,
which is what allowed the ethics commission to guide the two officials
into a disposition agreement.<br>
<br>
It is clear from this situation why
such a provision is an important part of a local government ethics
code. Yes, such a provision can be interpreted too broadly. But a
responsible
ethics commission can apply it only to matters where it is clear that
ethical misconduct has occurred, even when that misconduct is not
expressly described in the ethics code.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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