Misuse of a Local Office on a Regional Board

Anonymous

Tue, 10/16/2012 - 10:34

One conflict that is difficult to deal with in an ethics code, but
which comes up again and again, is the conflict situation that arises
when a local government official sits on a regional board or holds
another office that has a different constituency than the one he was
elected or appointed to represent. 
 
This issue arose a few days ago, when an attorney hired by the
Washington Metropolitan Area Transit Authority to investigate an ethics issue involving a Washington, D.C. council member and transit authority board member filed <a href="https://www.documentcloud.org/documents/461354-wmata-board-report-on-ji…; target="”_blank”">his
report</a>. The investigator found that the council member had
deferred a vote on a bid to develop a particular property. Before
the next meeting, the council member is said to have held a series
of meetings with individuals involved in the bid. He asked the
winning bidder to partner with a losing bidder. And he told a
principal of the winning bidder, who was bidding on the D.C. lottery
as part of a different company, that the council member would consider supporting the lottery bid only if the winning development bidder
withdrew its bid.

Let's assume that the council member was protecting the interests of
D.C. residents and/or the residents of his district by opposing the development bidder and supporting the
lottery bidder, and that he had no personal interest in either
matter. Is it appropriate for a council member to push his local
constituents' interests, even when the transit authority's staff had
determined that the development bidder's bid was the winning bid,
that is, that it was in the best interests of the region? And is it
appropriate for a council member sitting on a regional transit
authority board to try to make such deals behind the backs of his
fellow board members, no matter whose interests are involved? 
 
Representing Multiple Constituencies 
Regarding the first question, the council member is wearing
three hats with respect to just about any matter before the transit
authority. Two of the hats are acceptable if the council member is formally representing the city on the regional board, as is the case here. The city's representative need think only of the city's interests, not the region's. Matters will be
decided by areas joining with other areas to protect their
constituents' interests. 
 
What needs to be dealt with is the third hat, the district hat. If the project is in D.C. or outside of D.C. but in an area that might or might not serve his district, the council member will be conflicted between
the interests of his district and the interests of D.C. If the project is in his district, can he
possibly put aside his natural duties to his immediate constituents to think of the city's interests? 
 
It is hard to represent multiple constituencies, and it is often
inappropriate to represent one constituency on a board that is
supposed to represent a different constituency. The best thing is to have an unelected or citywide-elected official represent the city. If a district representative is allowed to represent a city, the city should expressly and clearly state that the representative's duties on the regional board are solely to represent the city, not his district. 
 
The transit authority has in its standards of conduct the following
language, quoted by the investigator:<blockquote>

It is imperative that Board Members in their private financial
relationships and in their official conduct strictly avoid engaging
in actions which create conflicts of interest or the appearance of a
conflict of interest. It is likewise imperative that Board Members
act impartially in their official conduct by avoiding any actions
which might result in favored treatment or appearances thereof
toward any individual, private organization, consultant, contractor
or potential consultant or contractor.</blockquote>

How can an official elected to represent one constituency not appear
to have a conflict when representing another constituency? And how
can an elected official, bound to represent his district and his
city, act impartially and not give preferential treatment to someone
he feels will be most advantageous to his district and his city? It
is hard to expect an official not to support a company from his
district or a project that will clearly help his district. 
 
Board Members Acting Independently of a Board 
My second question raises a different issue. While it may be appropriate for
the council member to speak and vote in favor of or against a
particular project or bidder, based on his duty to represent his city, is it appropriate for him to try to undermine a bidder
by offering him a deal he could make solely as a member of the
council? This is clearly a use of the powers of one office to affect matters that
involve another office. But is it a misuse of his council seat? 
 
I think it is. A board member does not negotiate deals, except as
part of a board. The investigator got it wrong when he wrote,
"Councilmember Graham created the conflict through his own actions
of appearing to barter a Metro joint development project with a
matter before the D.C. Council." The conflict already existed. The council member
used the powers of one office to give him special power in the other
office. In other words, he dealt irresponsibly with the conflict he
had and that is considered acceptable even by the investigator. 
 
The problem is that while allowing a serious conflict to exist, the
transit authority did not require its board members to deal with the
conflict responsibly, except by the use of vague and inappropriate
language, requiring impartiality and prohibiting the creation of conflicts that already existed. What
needs to be done, and the investigator does recommend this, is to
have a clear policy limiting the actions of board members with
respect to projects that come before them. 
 
Preventing Misuse of Local Office 
When officials are permitted to wear two or three hats on a regional board, an
ethics code is not sufficient to make them appear to be dealing
responsibly with their conflicts. What they can and cannot do must
be clearly set out in the law that governs their powers and
jurisdiction (rules could also be drafted in the jurisdictions that
are represented on the transit authority board). There needs, for
example, to be a strong ex parte communications provision. Anyone
who communicates with a board member outside of a formal meeting
cannot be allowed to participate in the project. A board member who
initiates ex parte communications should be dismissed, at least
after one warning. For more on ex parte communications provisions,
see the appropriate section of <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm">my
book Local Government Ethics Programs</a> in the Procurement
chapter. 
 
Wonderland or Ethicsland? 
According to <a href="http://www.washingtonpost.com/local/trafficandcommuting/report-councilm…; target="”_blank”">an
article in the Washington Post</a>, the council member still
doesn't understand what he did wrong. “I continue to feel like Alice
falling down the rabbit hole,” he said. “This is just bizarre.” He
noted that the report found no violation of the standards of conduct
and no evidence of a crime. 
 
In a jurisdiction where there has been no established ethics
program, government ethics must seem something like Wonderland. Government ethics
is not about crime, it's not even just about laws. It's about
dealing responsibly with conflicts. The council member did not
create the conflict, but he did deal irresponsibly with it. It's
hard to believe that he didn't realize that doing deals behind the
backs of his colleagues, using the powers of one office to affect
matters dealing with another office, was not the right thing to do.
But then, who would he have asked for professional, independent ethics advice in
a government that failed to provide an ethics officer (even now, a council member's ethics officer is the council's general counsel, who represented the council member in the transit authority matter, <a href="http://www.washingtonpost.com/blogs/post-partisan/post/bringing-jim-gra…; target="”_blank”">according to Washington Post columnist Colby King</a>, and could, therefore, hardly be considered independent)? 
 
Will this situation be discussed openly and honestly in the District
of Columbia, letting all officials and employees know that public discussion of and
independent advice on ethics issues are the best way to deal with
such matters, rather than expensive (financially and in terms of the
public trust) investigations and proceedings? Or will government
ethics remain a Wonderland in D.C., as it is in too many cities and
counties across the country? 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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