The Perils of Prohibiting Officials from Having Conflicts of Interest
One of the most frequent mistakes in the drafting of a government
ethics code is prohibiting officials from <i>having</i> conflicts of
interest. There is nothing wrong with an official <i>having</i> a conflict
of interest. There is only something wrong with an official <i>creating</i>
a conflict or failing to deal responsibly with a pre-existing
conflict. As can be seen in Massachusetts, where such a prohibition has made big waves, the prohibition of <i>having</i> a conflict can cause serious problems.<br>
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Those who pass prohibitions on <i>having</i> a conflict unknowingly go beyond what
is necessary, or even desirable. The news media follows their lead,
saying things like “The mayor has been accused of a conflict,”
turning every minor conflict situation into a scandal, often before
it can be handled responsibly. Officials become defensive at the
suggestion they have a conflict, rather than disclosing conflicts
when they arise and dealing with them responsibly. And many people cannot become officials without making unnecessary sacrifices.<br>
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In this way,
prohibiting conflicts limits who can be an official, turns officials against government ethics, and
prevents the open discussion of ethics issues. Officials become
afraid even to ask for advice, or they make sure they ask someone
who will give them the answer they want, so that they have a good
defense (or so they think) if their conflict becomes public.<br>
<br>
And yet such prohibitions continue to exist. When there is a
competent ethics program, the commission keeps providing waivers or
exemptions to allow officials to have conflicts in particular
situations. But a commission cannot simply ignore such a
prohibition.<br>
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In 2004, Massachusetts' prohibition on <i>having</i> a contract was
alleviated somewhat by allowing the state ethics commission (which
has jurisdiction over local officials) to promulgate rules that
grant particular "exemptions" to this prohibition and others, such
as the gift ban. To date, the EC has promulgated thirteen exemptions
to the conflict prohibition alone. This is a terrible waste of its
resources (see <a href="http://www.cityethics.org/node/633" target="”_blank”">my blog
post</a> on another Massachusetts contract situation).<br>
<br>
On September 5, a group of very high-class "formers," as well as the
executive director of Common Cause Massachusetts and a Roosevelt,
announced <a href="http://www.bluemassgroup.com/2013/09/petition-submitted-to-ethics-commi…; target="”_blank”">a
petition to the state EC</a>, requesting a fourteenth exemption
that would allow a state senator, who wants to run for governor, to
keep his interest in an airline that has a contract with a state-run
airport (see <a href="http://www.cityethics.org/content/how-handle-misrepresentations-ethics-…; target="”_blank”">my
recent blog post on the situation</a>). The "formers" include
former judges, state attorney generals, U.S. attorneys, and EC
members. This is a terrible waste of their time.<br>
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What is most upsetting about their petition, however, is that, after
a critical sentence or two, it accepts the prohibition on having
conflicts of interest, and seeks only an extremely narrow exemption
from it. These luminaries could have requested the EC to recommend
striking the prohibition altogether.<br>
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The result is that the petition looks more like a favor to the
senator than anything else, an attempt to let him run for governor
next year without giving up his business. In other words, it
politicizes the ethics exemption system.<br>
<br>
The cover letter to the petition acknowledges that some petitioners
are not happy with the limited request. "Some petitioners may prefer a broader regulation that applies to
non-elected state employees ... Others believe that new legislation
is warranted." I agree with the "others" who want new legislation.<br>
<br>
A high-profile situation like the gubernatorial candidate's should
be used for much more important purposes than simply making a narrow
exemption to a rule that has no place in an ethics code.
Massachusetts' ethics program is much better than its ethics code.
There is no reason to accept an inappropriate ethics provision as a
fact of life. <br>
<br>
This is a good time for the state legislature, with valuable input from the ethics commission and others, to take a fresh look
at Massachusetts' ethics code. This provision is not the only one
that is problematic (see <a href="http://www.cityethics.org/node/720" target="”_blank”">my blog post on another
problematic provision</a>). And the language throughout the code
deserves reconsideration.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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