Vive Les Differences!

One of the biggest differences between unethical conduct and criminal conduct by government officials is the matter of proving intent. For example, a bribe is nothing more than a gift to a government official where it has been proven that the official intentionally took a gift in return for certain conduct. In government ethics, taking a gift beyond a certain value is all that needs to be proven to show misconduct. The official's conduct, beyond accepting the gift, is irrelevant, as is the official's intent.

But what about knowledge? Clearly, if it can be shown that the official knew nothing about a gift, that an envelope containing $10,000 had been placed under his porch without his knowledge, it would not be considered receipt of a gift. But if the gift were given to his wife, and he insists she never told him about it, it's still an ethics violation.

What about knowledge concerning the subject of a vote? This is the issue raised by a complaint filed against a former planning commissioner in Santa Rosa, CA, according to an article this week in the Press Democrat. The complaint, filed with the state Fair Political Practices Commission, asserts that the planning commissioner acted as a lobbyist for the Sonoma County water agency in its attempt to change the land-use designation of property it owned, so that housing units could be built on it.

The respondent did not seek ethics advice regarding his vote on a master plan amendment that included the desired land-use change because, he said, "he was unaware the designation for the property was proposed for change under the updated general plan version he voted for. He said the change was never called out in any specific document nor was it the subject of any testimony during numerous public meetings. Instead, it was noted within the 300-page update. 'The only mention I saw was it was identified as a future redevelopment site by the county,' he said."

However, a January 2009 amendment of the water agency's contract with the respondent requires him to “conduct additional planning, research and collaboration with city of Santa Rosa to include [the] property as part of the city of Santa Rosa’s general plan amendment.”

Let's assume the respondent never read the contract or plan amendments, and there is no evidence that he did anything to include the property in the plan amendment he voted for, so that there is no proof that he had any knowledge of a possible conflict of interest. Would this mean that there was no conflict, and that it was okay to vote on the plan amendment?

If the respondent were accused of a crime, I would say the evidence is circumstantial. But in an ethics enforcement action, there is evidence that he agreed to seek inclusion of the property in the general plan amendment, and that would be proof enough that he had a direct interest in, and received a direct benefit for, the successful inclusion of the property in the plan amendment he voted for.

There appears to be more evidence, but the important thing to recognize here is that ethics enforcement differs from criminal enforcement not only because people aren't put in prison for unethical conduct. The level of intent and of knowledge are also different. Why?

One reason is that government ethics is a relatively inexpensive way of handling relatively minor instances of misconduct. This can only be done if the evidentiary and due process requirements of criminal law are dispensed with. Along with this, the seriousness of the consequences is also reduced.

Another reason is that government ethics is more about the appearance of impropriety than it is about the guilt of the official. What an official intended to do, and what he knew, are irrelevant to how his conduct appears to the public.

Another reason is that government ethics is less about enforcement than it is about acting responsibly. A guy who's planning to rob a bank doesn't ask someone for advice on whether or not he should. A government official who has a possible conflict knows full well that he should ask for advice if he's not sure whether or not he should participate and vote (and he should also check what he's voting for to see if it includes the property he's been working on). If he fails to check and ask, and he chooses to participate or vote, he has only himself to blame, for he has failed to learn rule #1 in government ethics.

This is not to say that all, or even most, government ethics program recognize these differences, or the reasons for them. Many make ethics violations misdemeanors, and many even require criminal prosecution. Many also require evidence not only of knowledge, but of intent. There is a great deal of confusion between conflicts and crime in the government ethics world. It's time there was an open debate about the differences.

Robert Wechsler
Director of Research-Retired, City Ethics

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