Local Government Employees Sitting on Councils

Anonymous

Fri, 01/07/2011 - 02:48

Conflicts

<a href="http://www.thestarpress.com/article/20110106/OPINION01/101060319">An
editorial
in yesterday's Star Press</a> of east central Indiana calls
for passage of a state law to prevent municipal employees from sitting on a
body that oversees their department or agency's budget. The focus is
primarily on preventing city and county workers from sitting on city
and county councils. 
 
The editorial calls it a "no-brainer" because "it's a conflict of
interest to have public employees sitting on fiscal bodies and voting
on issues pertaining to their own employment: 'It sends the wrong
message, I think, to the public.'"

In addition, this practice "undermines the chain of command and
procedures for discipline involving public safety, and more
importantly, lessens the faith citizens must have that local
governments are acting in the public's interest. The public should have
no doubt the person they elect will represent them, and not the
firefighters, police or any other government agency." 
 
Finally, the editors ask the question, "What kind of policies would be
enacted if a majority of the governing council's members came from the
very body they governed?" 
 
These seem like excellent arguments. But are they? 
 
The Possibility of Withdrawal from Participation 
The editors' arguments raise some questions they leave unanswered. One
question that they do raise – the possibility of having the council
member abstain from matters that involve her department or agency – they
toss off far too easily by saying, "That doesn't always happen." That
problem is easy to deal with. Instead of prohibiting the employee from
being on the council, prohibit the employee from participating, as a
member of any board, in matters that involve her department or agency,
with the penalty for participating being a choice of resignation from
one position or the other. 
 
The Relationship Between Council and Employee 
Another question raised by the editorial is whether a body that
oversees a department or agency's budget actually governs the
department or agency, as the editors imply by speaking of the
undermining of "the chain of command and procedures for discipline." Do
councils stand in a chain of command over departments and agencies? It
is my understanding that the mayor, in a strong mayor form of
government, or the city manager, in a council-manager form of
government, supervise departments and agencies, and that councils are
not allowed to get involved in management. 
 
As for discipline, there is no doubt that a police officer should not
sit on a police commission that disciplines police officers. This is a
problem with teachers and school boards, as well. And, of course, with
ethics commissions, which usually have a rule that no employee or
official may sit on them. 
 
Union Issues 
What about the editors' final question, regarding the policies of a
council with a majority of local government employees sitting on it?
This could be a problem when it came to approving labor contracts, if
all the employees were members of labor unions. But they would likely
be members of different unions, approving only the contracts with
unions other than their own. They might be sympathetic to unions, but
wouldn't that also be true of the voters who elected them? If they
wanted to be tough with government unions, they would hardly elect
government union members to sit on the council. 
 
The Hatch Act 
And then there is <a href="http://www.cityethics.org/node/409">the
Hatch Act</a>, a federal law that, among other things, says that a
local government employee principally employed by a program funded by
the federal government "cannot be a candidate for public office in a
partisan election." 
 
At first blush, this would seem to support the editors' view. However,
the Hatch Act was not an act dealing with conflicts of interest. Note that the Hatch Act only refers to candidacy, not office-holding. The Indiana Supreme Court, in 2009, found that the Hatch Act cannot be applied to a sitting mayor, only to a candidate (see <a href="http://caselaw.findlaw.com/in-supreme-court/1015139.html">Burke v. Bennett</a>). 
 
The principal goal of the Hatch Act was to prevent patronage problems and the use of federal
funds to affect elections. In other words, it was intended to prevent a
corrupt election system, not to deal with conflicts of interest. 
 
What Would Justify Such a Law 
It takes something this serious to prevent someone from running for
office and to prevent the public from voting for whomever it chooses.
When the alternative of withdrawal from participation is available, a
conflict of interest is not enough to take away the right to run and
the right to vote. 
 
If one would oversee the management or discipline of one's department
or agency, then there is an ongoing conflict of interest that cannot be
easily cured. Therefore, it would be acceptable to prohibit a local
government employee from running for mayor. But the council is a
policy-making body, and while many people may not want government
employees to be making government policy, I do not think there is a
serious enough conflict of interest to prohibit this, beyond the Hatch
Act's prohibition. 
 
Conflicts of Interest Are Not Necessarily Bad 
In any event, it's hardly a "no-brainer." Only someone who believes a
conflict of interest is bad, which is not the case, would think this.
The reason the editors think this is, most likely, that so many people
attack others for having conflicts of interest, rather than criticizing
them for not dealing responsibly with their conflicts. As long as a
conflict can be (and is) dealt with responsibly, it is acceptable. 
 
Government Employees Acting in the Public Interest 
The editors are not alone. In 2007, <a href="http://indianalocalgovreform.iu.edu/">the Indiana Commission on
Local Government Reform</a>, co-chaired by former Gov. Joseph Kernan
and Supreme Court Chief Justice Randall Shepard, recommended that such
a law be passed, arguing that this situation is "a clear conflict of
interest [and] diminishes the faith that citizens must have that local
governments act in the public interest." It also raised the chain of
command and discipline issue (see p. 37 of <a href="http://indianalocalgovreform.iu.edu/assets/docs/Report_12-10-07.pdf">the
report</a>). 
 
But why can't government employees act in the public interest,
especially since it is their obligation to do so (as opposed to, say, a
developer or contractor, who would be allowed to sit on a council despite their obligation to further the interests of their partners and shareholders)? I
would usually prefer not to vote for a government employee to sit on a council,
but I can certainly imagine many situations where I would vote for one. 
 
Other Such Laws 
I could only find one state that has a law like this, Minnesota. <a href="https://www.revisor.mn.gov/laws/?id=206&year=2010&type=0">The law</a>
was passed in 2010. It's worded differently, in terms of mayors and
city council members not being permitted to be employed full-time by
the city. <a href="http://www.lmc.org/page/1/newlaw-employee-elected.jsp">According
to the League of Minnesota Cities</a>, the law was based on a similar
one involving school boards and those who work for school boards. But
the difference is clear as day: a clerk does not work for the
council the way a teacher works for the school board. School boards
have limited jurisdiction over one department; councils have broad
jurisdiction over a number of departments and agencies. A teacher would
have to withdraw from far too many matters; a clerk would not. 
 
The City Ethics Model Code has a provision called "<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC33…
Employed by the City</a>," which expressly requires recusal under such
circumstances. Here is the language and the comment: 
 
§100.2 A member of the legislative body has a
conflict of interest with respect to any labor contract to which he or
she, or a member of his or her <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC10…;,

may be a party, and with respect to an appropriation to any city
department or agency through which he or she, or a member of his or her
household, is employed. 
 
Comment: Some cities require that there be no
incompatible or even multiple offices held by an individual, especially
a council member, so that this problem could only arise with respect to
members of the household. In towns and small cities, it is more
difficult to make such requirements, because there are sometimes too
few competent and interested people to go around. Also, withdrawal can
take care of instances such as those described in this subsection. But
explicit restrictions in this area, especially in large cities, can be
valuable. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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