Two Case Studies

Anonymous

Thu, 10/29/2009 - 02:31

City Related

Here are two interesting local government ethics case studies from
matters in the news this week. 
 
A Job Can Effectively Be a Gift 
According to <a href="http://www.spokesman.com/stories/2009/oct/22/in-brief-woman-reports-rap…; target="_blank">an
article in the Spokesman-Review</a>,
a Spokane council member requested an advisory opinion from the city's
ethics committee after his
successful push to change city regulations to allow bus bench
advertising was questioned. At the time, the council member was working
as an architect
on an apartment complex for the co-owner of a company that sells bus
bench advertising. The council member argued that he's supported
bus
bench advertising for years.

This set of facts raises at least three questions. Should an official
recuse himself on a matter when he is doing a
completely unrelated job for a company interested in the matter? Should
an official refuse a job for a company owned by someone who has or is
likely to have business before his board? What obligation do citizens
have not to hire board members when they have or
are likely to have business before their board? 
 
There is certainly no direct conflict here. The council member received
no
financial benefit from the bus bench advertising decision. Nor is there
an ordinary indirect conflict, because neither his family nor a
business associate received a financial benefit from the decision. So
the question is, Is there
a conflict when a client gets a benefit, even though the work done has
nothing
to do with the matter or even with the company receiving the benefit? 
 
If the council member were a doctor, one would be inclined to say there
is no conflict. Advising an interested party about his heart problems
has nothing to do with bus bench advertising and involves a tiny
portion of the doctor/council member's income. 
 
But an apartment building job taken by an architect represents a large portion of his income. So it's a more difficult question. 
 
Now put yourself in the client's shoes. A bill that
would give you a lot more bus bench
advertising business is up for consideration before the council. You
want a strong
advocate on the council for the bill, there's an architect on the
board, and you need to hire an architect for a project you are working
on that has nothing to do with advertising. So you hire the council
member rather than another architect. You give up nothing, and the
council member gets an extra job. And yet there's no gift involved,
because presumably the architect is being paid the going rate. And the
design job is so unrelated to bus bench advertising, no one will
notice or care. 
 
The public will look at the situation from this point of view. To the average person,
there is a council member and a client, and not unrelated businesses. The client, who can make a
lot of money out of a bill, hires the council member. This looks like a
quid pro quo, whether or not it actually is. Even the fact
that the council member isn't changing his position on the issue doesn't change the fact
that the client wanted a strong advocate, not just a vote. 
 
This issue usually arises with lawyers rather than architects. Business
people have lots of law business to hand out, so why not hand it out to
people who can help you politically? It's not a gift according to
ethics code gift provisions, and the lawyer is not representing the
client in a related case or before his own board, which would clearly
not be allowed. It's the perfect way to help out someone who can help
you out, without spending a dime, assuming the council member is
competent. 
 
And yet the council member should recuse himself when any matter
involving his client comes up, because the appearance of impropriety is
so strong, and rightfully so. In fact, a council member should not even
take a job from someone with business before the council, no matter how
unrelated the job is. It's better to work for people with no business
before you. It's one of the many sacrifices that need to be made by
officials, especially important elected officials. 
 
But there are many instances where the board or council member will not
know that the person offering him work will have business before the
board. This is one reason why those who do business with a local
government or whose business is affected by decisions of its boards and
commissions should not be allowed to offer work to elected officials whose decisions
could affect them. The burden should not be exclusively on the official. 
 
How to Determine Whether Staff Research Was Intended for Election
Purposes 
From an <a href="http://electriccityweblog.com/?p=6287" target="”_blank”">Electric City
blog post</a>: "In response to a question at a City Commission
Forum, a [city commission candidate] stated that City tax receipts have
increased by 44% in the last 5 years. The two incumbent Commissioners
... took issue with this assertion. A few days later, City Staff
provided the City Commission with a response to the assertion." 
 
The issue is, should city commissioners use their staff to research
matters that arise in an election (if indeed they requested the
research)? The most important problem is determining whether the
purpose of the memo was to help with the two incumbent
commissioners' re-election or just ordinary commission business.
Gregg Smith, who wrote the blog post, shows how to think this problem through. I share his analysis in compressed form below: 
<ul>First, by its own terms, the memo is
responsive to a
question that was asked of political candidates at a political function. 
 
Second, it is not a general, public
refutation of assertions made
at the forum, but was instead provided personally to the City
Commissioners. 
 
Third, the memo does not
address any issue currently pending before the City Commission. It was
not done in the ordinary course of Commission business. 
 
Fourth, it puts challengers at a
disadvantage when public money is spent to help their opponents make
their political case. This is a question of fairness. </ul>
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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