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Political Preferential Treatment and Quid Pro Quos
Tuesday, June 8th, 2010
Robert Wechsler
A capable individual decides to run for city council against an
incumbent who has been on the council since long before the mayor got
involved in politics (in other words, the incumbent owes nothing to the
mayor and is in no way under the mayor's control). The mayor asks a
former mayor to try to convince the candidate to drop out of the race,
and allows the former mayor to offer the candidate an unpaid position
on a city commission.
This is the Sestak-Obama-Clinton case dropped down to the local level. It happens all the time. Two questions arise: is this technically a government ethics issue and, even if not, does it undermine the public's trust in those who govern?
Political Preferential Treatment
I don't think this is a government ethics issue. The mayor would receive no benefit were the candidate to drop out of the race, nor would members of his family, his business associates, etc. He is, of course, preferring one candidate over another, but mayors prefer council candidates all the time. This is not the sort of preferential treatment prohibited by ethics codes, because it has nothing to do with government services, permits, contracts, or the like. This preference is purely political.
Similarly, offering a qualified individual a position on a commission is also not the sort of preferential treatment contemplated by ethics codes, and it does no harm to the public interest. The only benefit goes to the candidate (the same benefit that would occur no matter who is chosen) and, indirectly, to the incumbent. But the incumbent is not involved in the transaction, and has no relationship with the mayor other than being council members together in the past.
Political Quid Pro Quos
However, there is a quid pro quo transaction here, and quid pro quo transactions are the stuff of bribery. But bribery occurs when someone who is interested in getting the government to do something to his benefit offers one or more officials money or goods in order to convince them to act so as to provide him that benefit.
Here the "bribe" is being offered to someone who is not a government official or, if he were a government official, the conduct requested has nothing to do with his government responsibilities. And the conduct requested would not in any way benefit the individuals offering the "bribe."
In other words, the form is that of a bribe, but the content is not. This allows people to treat the transaction as a bribe, even when it is not. Confusing people about what is and is not a bribe is itself an ethical issue, but not a government ethics issue.
If the Incumbent Made the Offer
What if the incumbent himself had sent a former mayor (or asked the current mayor to intervene) to try to convince a candidate to drop out of the race, and promised to do what he could to get the candidate a position on a commission? Here, there would be a direct benefit to an individual involved in offering the "bribe" (although in the case of unpaid council members, the benefit would not be financial and, therefore, would not be covered by most ethics codes).
This transaction would, I believe, be unethical, although it is in a gray area that would usually not be found to be a violation. Such a transaction goes beyond politics. It involves the misuse of one's office to help oneself preserve that office for oneself. It is still not a bribe per se, but it's a transaction that involves both one's office and a benefit to oneself.
Undermining the Public's Trust
It's time to move on to the second question: although technically not a government ethics issue, does the original transaction undermine the public's trust in those who govern? I don't think so. I think the public is used to politicians supporting other politicians, and doing what is known as horse-trading when required. On their own or along with councils and party committees, mayors commonly play a significant role in the political careers of people in their city. A nomination to an important commission is, as in any organization, a sign that the boss approves of the individual's performance.
The problem is that such approval takes two forms. One is approval of competence, the other is approval of acting or voting the way the mayor wants.
What distinguishes the Sestak situation is that the incumbent is not someone who votes with the mayor. In fact, in the Sestak case, the incumbent had been a member of the other major party until very recently. The transaction was not an attempt to consolidate the president's power, but an attempt to help someone who had greatly helped the party by changing party affiliation. If treated honestly and fairly, the public will see such a transaction not as the mayor using his position to consolidate his power, but as a way of rewarding an elected official who had risked a great deal to help the mayor's party. This is a political deal that in no way harms the public interest.
But what about a situation where the incumbent is fairly seen as under the control of the mayor? Although the benefit here is purely political, there is a direct benefit to the mayor (albeit political), and he is using his position to keep his man on the council. Even if the opposing candidate is qualified for the position he is being offered, the public will reasonably see the transaction as a misuse of office to preserve one's power in the city. This, I think, does undermine the public's trust in government and, although it does not violate an ethics code, should not be done. Nor should such an offer be made to an unqualified individual just to get him out of the way.
Robert Wechsler
Director of Research-Retired, City Ethics
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This is the Sestak-Obama-Clinton case dropped down to the local level. It happens all the time. Two questions arise: is this technically a government ethics issue and, even if not, does it undermine the public's trust in those who govern?
Political Preferential Treatment
I don't think this is a government ethics issue. The mayor would receive no benefit were the candidate to drop out of the race, nor would members of his family, his business associates, etc. He is, of course, preferring one candidate over another, but mayors prefer council candidates all the time. This is not the sort of preferential treatment prohibited by ethics codes, because it has nothing to do with government services, permits, contracts, or the like. This preference is purely political.
Similarly, offering a qualified individual a position on a commission is also not the sort of preferential treatment contemplated by ethics codes, and it does no harm to the public interest. The only benefit goes to the candidate (the same benefit that would occur no matter who is chosen) and, indirectly, to the incumbent. But the incumbent is not involved in the transaction, and has no relationship with the mayor other than being council members together in the past.
Political Quid Pro Quos
However, there is a quid pro quo transaction here, and quid pro quo transactions are the stuff of bribery. But bribery occurs when someone who is interested in getting the government to do something to his benefit offers one or more officials money or goods in order to convince them to act so as to provide him that benefit.
Here the "bribe" is being offered to someone who is not a government official or, if he were a government official, the conduct requested has nothing to do with his government responsibilities. And the conduct requested would not in any way benefit the individuals offering the "bribe."
In other words, the form is that of a bribe, but the content is not. This allows people to treat the transaction as a bribe, even when it is not. Confusing people about what is and is not a bribe is itself an ethical issue, but not a government ethics issue.
If the Incumbent Made the Offer
What if the incumbent himself had sent a former mayor (or asked the current mayor to intervene) to try to convince a candidate to drop out of the race, and promised to do what he could to get the candidate a position on a commission? Here, there would be a direct benefit to an individual involved in offering the "bribe" (although in the case of unpaid council members, the benefit would not be financial and, therefore, would not be covered by most ethics codes).
This transaction would, I believe, be unethical, although it is in a gray area that would usually not be found to be a violation. Such a transaction goes beyond politics. It involves the misuse of one's office to help oneself preserve that office for oneself. It is still not a bribe per se, but it's a transaction that involves both one's office and a benefit to oneself.
Undermining the Public's Trust
It's time to move on to the second question: although technically not a government ethics issue, does the original transaction undermine the public's trust in those who govern? I don't think so. I think the public is used to politicians supporting other politicians, and doing what is known as horse-trading when required. On their own or along with councils and party committees, mayors commonly play a significant role in the political careers of people in their city. A nomination to an important commission is, as in any organization, a sign that the boss approves of the individual's performance.
The problem is that such approval takes two forms. One is approval of competence, the other is approval of acting or voting the way the mayor wants.
What distinguishes the Sestak situation is that the incumbent is not someone who votes with the mayor. In fact, in the Sestak case, the incumbent had been a member of the other major party until very recently. The transaction was not an attempt to consolidate the president's power, but an attempt to help someone who had greatly helped the party by changing party affiliation. If treated honestly and fairly, the public will see such a transaction not as the mayor using his position to consolidate his power, but as a way of rewarding an elected official who had risked a great deal to help the mayor's party. This is a political deal that in no way harms the public interest.
But what about a situation where the incumbent is fairly seen as under the control of the mayor? Although the benefit here is purely political, there is a direct benefit to the mayor (albeit political), and he is using his position to keep his man on the council. Even if the opposing candidate is qualified for the position he is being offered, the public will reasonably see the transaction as a misuse of office to preserve one's power in the city. This, I think, does undermine the public's trust in government and, although it does not violate an ethics code, should not be done. Nor should such an offer be made to an unqualified individual just to get him out of the way.
Robert Wechsler
Director of Research-Retired, City Ethics
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