Problems with Obtaining a Job with a Contractor for One's Agency

The Stamford (CT) <i>Advocate</i>'s Angela Carella wrote <a href="http://www.stamfordadvocate.com/news/article/Angela-Carella-In-ethical-…; target="”_blank”">an
excellent column on Saturday</a> about a post-employment (also
known as revolving door) situation in Stamford. Entitled "In Ethical Questions,
Appearances Matter," the column looks at the many problems with a
school board member taking a job with a company that manages the
school board's construction projects. He resigned his
position the day before he accepted the job.<br>
<br>
When officials take jobs with businesses their agency oversees, they
are seen as using their government service as a stepping stone to
help
themselves as well as the firms that do business with the
government, a win-win deal for
everyone but the public. The revolving door puts a question mark at
the end of everything
the official did in office: what was he giving away in order
to get a personal reward?
When he acted, advocated, and voted, was he thinking of his
future or what’s best for the
public?<br>
<br>
One of Carella's most astute observations is that the situation was not cured by the school board
member's decision not to attend a meeting where the school board
voted on a 42% increase in the contractor's fee (partly
to create the position the school board member has filled). One reason is that, despite withdrawing
from the vote, he did not withdraw from participation in the matter.
"[H]e had the opportunity in the months before — particularly as
head of the Operations Committee that oversees [the contractor] — to influence
board members' views of [the company's] performance as school
facilities manager."<br>
<br>

Another reason why the school board member's withdrawal from the
vote was insufficient is that the company "could have felt pressure
to hire him, otherwise risk angering someone holding a key position
on the school board." In other words, the school board member
was in a position to either make a deal with the contractor or, at
least, be preferred due to the trouble he could cause if the job were given to
someone else.<br>
<br>
What Carells doesn't say is that, in terms of appearance, post-employment work
opportunities are indistinguishable
from gifts or bribes, although the quid pro quo is hard to
prove without a sting operation. It's impossible to know if either or both of the parties to the employment contract were involved in misconduct. All the public knows is that it looks like they were, and that this appearance of misconduct makes it irresponsible for the school board member to have sought or accepted the job.<br>
<br>
A third reason, which Carella doesn't mention, is that the school
board member did not disclose his conflict, that is, he does not appear to have told his colleagues that he was
talking with the contractor about the position the school board was
voting on. He simply did not attend the meeting. By failing to do this essential element of withdrawal, he
did not give the school board the chance to deal responsibly with
the situation. This failure put the school board in the
uncomfortable position of having done something that, to the public,
looks inappropriate. Therefore, the school board should have
reconsidered its decision and, I believe, cut from its increase in
the fee by the amount that would have funded its member's position,
whether or not he ended up taking it.<br>
<br>
<b>The Appearance of Impropriety</b><br>
Carella concludes that what occurred "creates an appearance of
conflict of interest, which can be nearly as damaging to the public
trust as an actual conflict." In fact, it is just as damaging,
because all the public can know is what appears from the facts and
what can be inferred from what happened. No one will ever know what
deals might have been made or what pressures may have brought to
bear.<br>
<br>
The appearance of impropriety is increased by the fact that "a week
earlier, [the school board] cut 13 jobs, citing budget pressures."
In a time of reduction in expenditures, it is more surprising that a
contract was increased by 42% to create a job that was filled by a
school board member. It makes the entire school board look like it
was in league with the member who wanted the job, whatever might
have been the case. The school board members may not have known that
their colleague was seeking to fill the position, but the public
cannot know what they knew. If they did not know, once they found
out, the school board members should have at the very least insisted
that their colleague not take the job.<br>
<br>
<b>Seeking the Right Advisory Opinion at the Right Time</b><br>
It's good that the school board member sought an advisory opinion
from the city's board of ethics. The problem is that he sought it
only with respect to accepting the job. He does not appear to have
sought it with respect to his disclosure of job negotiations or his
participation in discussions about the increase in the contractor's
fee.<br>
<br>
<b>Talking with Contractors About a Job</b><br>
In fact, there is a question whether the school board member should
have talked with the contractor at all. Some ethics
codes expressly state that a job offer
or even discussion of a job constitutes a conflict (in Seattle, for
instance, this is in the basic
conflict provision, §4.16.070(1)(a)). Some ethics codes instead
require disclosure of any
such discussion, and others prohibit any such discussion with a
party to any matter before the
official’s department, agency, or board. These rules allow job
offers to be dealt with by
withdrawing from matters involving the prospective employer or, when
the matter has
already moved forward, prohibiting any discussion with the potential
employer at all. Since the school board member was involved in
ongoing oversight over the contractor, most of these approaches
would have prohibited discussion of a job with the contractor.<br>
<br>
The ethics board unanimously allowed the school board member to take the
job. But it did insist that he not represent the contractor before
his board for at least one year. I hope this means that he cannot
communicate with his former colleagues during that time, not just
that he cannot appear publicly before them.<br>
<br>
<b>Provisions to Deal with This Situation</b><br>
Like most jurisdictions, Stamford has a limited post-employment
provision. It only applies to assisting or appearing with respect to
matters an official participated in or that was pending during the
time he had a city position. The City Ethics Model Code has a
provision that somewhat deals with a situation like the one in
Stamford:<blockquote>

An official or employee, or a member of his or her immediate family,
may not accept employment with, or with the help of, (a) a party to
a contract with the city, within two years after the contract was
signed, when he or she participated personally and substantially in
the preparation, negotiation, or award of the contract, and the
contract obliged the city to pay an aggregate of at least $25,000;
or (b) an individual or entity who has, within the previous two
years, benefited directly from any decision made by, or based on
advice or information supplied by, the official or employee or by a
subordinate.</blockquote>

Even this language does not contemplate this particular situation.
Subdivision (a) does not apply, because the contract was more than
two years old. However, its terms had just been changed to allow for
the school board member's hiring, which is a major change under these circumstances. Subdivision (b) arguably does not
apply because the school board member did not himself make
decisions. However, as the chair of the school board's operations
committee, the member had a significant role in overseeing the contractor's work and, therefore,
could be seen as benefiting the contractor.<br>
<br>
Whether this language applies to this situation, the spirit of the
provision definitely applies:  it is not a responsible use of
one's public office for someone who has been involved in making
decisions regarding a contractor to take a position with that
contractor, at least for a year or two after leaving public service.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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