Dealing Responsibly with Contract Conflicts
Two important issues arise from a story about a competitive bid for a
concrete contract for an arena in Louisville which, according to <a href="http://www.courier-journal.com/article/20101127/OPINION01/311270025" target="”_blank”">an
article in yesterday's Louisville <i>Courier-Journal</i></a>, was won by a
company solely owned by a member of the state task force that chose the
site, the chair of the board that manages the arena, a close friend of
the coach of the arena's primary tenant, and a nonvoting member of the
arena authority, whose executive director reports directly to the board
that this individual chairs.<br>
<br />
<strong>Disclosure Is Not Always Sufficient</strong><br />
Because there are many ways to skew even competitive bidding of a
contract, especially via input into writing the specifications, it is
not enough for an official to simply disclose possible conflicts when
that official is in a position to have input into any aspect of the
contract. Disclosure is important, but when it looks to the public as
if the official might influence the bid directly or indirectly,
disclosure is not enough.<br />
<br />
There are two ways to deal with this situation responsibly.
One is to fully withdraw from participation in the matter. This means
having no communication at all with anyone involved in writing
specifications or making any determinations of matters that will affect
the contract, such as building design and location. This is possible
for, say, a council member who would not normally deal with such
people. But it is impossible for someone with all of this individual's
contacts and responsibilities. He would have to resign from the
managing board and the arena authority.<br />
<br />
The other way to deal with this situation responsibly would be not to
bid. Many jurisdictions prevent officials from bidding for any contract
with the government. With a law such as that, this
individual would not have become an official at all, which would have meant there would be no conflicts in the first place.<br />
<br />
<strong>Form of Disclosure</strong><br />
The individual says that he disclosed his conflicts, and a couple
others agreed that he did, but he did not put it in writing, as
required. The article says that an ethics expert recommended that the
state have a standard disclosure form, but this advice was rejected. It
sounds like good advice to me. A disclosure form easily accessible
online allows officials and contractors to easily disclose conflicts, to know exactly what the procedure is for filing the disclosure, and to know what else is required under certain circumstances.
The guidance is clear, and there is no excuse for failing to disclose.
The office to which the disclosure is made can quickly decide whether
the disclosing party or other parties must do more than disclose.<br />
<br />
Here are links to some local government disclosure forms:<br />
<a href="http://www.atlantaga.gov/client_resources/government/boards/board_of_et…; target="”_blank”">Atlanta</a><br />
<a href="https://www.sanantonio.gov/eforms/atty/RecusalandDisclosureV1.pdf" target="”_blank”">San
Antonio</a><br />
<a href="http://www.mass.gov/?pageID=ethsubtopic&L=3&L0=Home&L1=Laws%2c+Regulati…; target="”_blank”">Massachusetts</a><br />
<a href="http://www.ethics.state.tx.us/forms/CIS.pdf" target="”_blank”">Texas</a><br />
<br />
Robert Wechsler<br />Director of Research-Retired, City Ethics<br /> <br />---