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One Commissioner, Two Conflicts, and No Ethics Program in Moore County, NC
Tuesday, January 4th, 2011
One Moore County (NC) commissioner has been faced with two conflict of
interest matters in 2010, one of which led him to recently resign
from a board. Although the two have nothing to do with each other, they
have become politically intertwined which, along with the lack of an ethics program, has prevented the
responsible handling of the conflicts.
Sitting on the Board of an Organization Funded by the County
According to an article in yesterday's Pilot, the county commissioner resigned from the board of the local community college, effective next June 1, due to the appearance of a conflict, since the college is partially funded by the county. This would appear to be an unnecessary resignation, since the commissioner could withdraw from participation in any matter that came before his commission involving the college. This would normally involve only the size of the county's annual funding of the college.
The article notes that it is legal for a commissioner to sit on a community college board, and that in fact the state statute encourages such participation. The chair of the college board explained that the reason for this encouragement is that community colleges provide most of the workforce training in North Carolina, and that commissioners and other legislators "understand the mission." This is not a very good argument, because even if it were true that commissioners and legislators have a special understanding of workforce training, that understanding could be just as useful if a former commissioner or legislator were placed on each community college board.
The commissioner says that he resigned from the college board because he didn't want the political debate to hurt the college, and that he wanted to do it "on my own terms." But if he believed the conflict was serious enough to merit resignation, to protect the college, why wasn't his resignation effective immediately? It's not as if he is necessary to the board's functioning.
Having a No-Bid Contract with the County
The reason all of this rings a bit false is that the resignation has little to do with this conflict. There is another, more important conflict, as well as an important project that has led the commissioner to this excessive handling of his community college conflict.
The other conflict is an odd one. According to an article in the Pilot last week, the commissioner is the CEO of a software company that supplies law enforcement offices across the state and in other states. Since it would not have been acceptable to sell the software to the county sheriff's office, the company gave it to the county. But the county has a maintenance agreement that pays the company $24,000 a year.
According to a July article in the Pilot , the state has an unusual law that allows local governments to do business with a company in which an elected official has a direct financial benefit if the value of the contract does not exceed $25,000 and if the population of any town in the county does not exceed 15,000. Last year, the maximum value was raised to $40,000. Frayda Bluestein, a professor of government at UNC and one of the authors of the wonderful Coates' Canons local government blog, told the reporter that "the exemption in the law is intended to help small areas where there may be limited access to certain services."
That is not the case here. The software company is not a local provider, but a national provider that happens to be based locally. And although each annual contract is under the limit, it is apparently unbiddable, since the maintenance is of the company's software.
It appears that the deal as a whole is good for the county, but that is not the only consideration. Also important is how it appears to the public. What the commissioner has said is not helping that appearance: "I would just as soon give it away. It is not about the money. We made it $24,002 (the contract). We aren't anywhere near the maximum allowed. Moore County is our home. We wanted to have our own county [as a customer]. That was important to us."
If he'd just as soon give it away, why does he charge $24,000 a year for the maintenance contract? And why should it matter to the public that he wants his county as a customer? When you put this feeling another way — he doesn't want a competitor in his own backyard — it doesn't look so good.
The chair of the board of commissioners feels that the commissioner wants the contract so that he has a local place to showcase his product. If the software company does take its clients over to the sheriff's office, then this might actually be an issue, because it would provide a clear benefit to the company in addition to the maintenance contract. It would even mean that the gift of the software (which, of course, costs the company nothing) was not really a gift at all, but a valuable investment.
The Real Issue
It is this possibility that ties these two conflict situations into what this whole controversy is all about: the building of a new jail and sheriff's office. The software CEO is a proponent of this new building, and one of the arguments being made by those who oppose it is that a spanking new sheriff's office will be a far better showcase for the software company to display its wares.
What is interesting is that the commissioner chose not to stop charging the county for software maintenance, which would have dealt with the more serious of the two conflicts, and instead went overboard on the more minor conflict, his seat on the community college board. It's good that he didn't want the college to be tangled in the fight over the new jail, but this could have been accomplished by agreeing to vote separately on the college's budget item, with the commissioner recusing himself.
The County Attorney as Ethics Adviser and Ethics Code Drafter
It also doesn't help that the only person providing ethics advice relating to these matters has been the county attorney, whose comments are limited strictly to the law. She says that the dealings between the county and the software company are perfectly legal, but says nothing about the appearance of impropriety or the issue of using the sheriff's office as a showcase.
This same county attorney wrote the county ethics code (attached; see below), really a code of conduct for the county commission, with references to state ethics laws. The ethics code was passed in November. Her code refers to ethics provisions as "minimum standards," and there is a provision which refers to appearances of impropriety:
Politicizing the Ethics Process
The final issue in this matter arose at the meeting where the county commission approved the ethics code. Its chair wanted to make three last-second amendments, all of which pointed directly at the software CEO, community college board member, and supporter of purchasing certain property for the new county jail (and, to a lesser extent, his former partner and still chairman of the board of the software company, who is also a member of the county commission).
The proposed amendments were as follows:
Once again, it is clear that the debate over ethics issues in Moore County is really a debate between two factions on the commission, and that the principal issue is not the community college or even the software contract, but the new jail. There appears to be no one in the county government who is willing to acknowledge that, although there is a new ethics code, the county has no ethics program (part of the problem is the terrible state ethics code requirement passed in 2009; see my blog post on it). The entire program sits on the shoulders of the county attorney, who speaks only of the law. There is no training program, no independent adviser or enforcer, and no disclosure. The guidelines are not clear, and the entire process is politicized.
The Pilot editors, at least, recognize aspects of the problem. But someone needs to look around at the rest of the world, and recognize that the new ethics code is primarily a code of conduct for the county commission, and nothing more, and that neither the county commissioners nor the county attorney seem to understand what a government ethics program is or why ethics should not be politicized.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Sitting on the Board of an Organization Funded by the County
According to an article in yesterday's Pilot, the county commissioner resigned from the board of the local community college, effective next June 1, due to the appearance of a conflict, since the college is partially funded by the county. This would appear to be an unnecessary resignation, since the commissioner could withdraw from participation in any matter that came before his commission involving the college. This would normally involve only the size of the county's annual funding of the college.
The article notes that it is legal for a commissioner to sit on a community college board, and that in fact the state statute encourages such participation. The chair of the college board explained that the reason for this encouragement is that community colleges provide most of the workforce training in North Carolina, and that commissioners and other legislators "understand the mission." This is not a very good argument, because even if it were true that commissioners and legislators have a special understanding of workforce training, that understanding could be just as useful if a former commissioner or legislator were placed on each community college board.
The commissioner says that he resigned from the college board because he didn't want the political debate to hurt the college, and that he wanted to do it "on my own terms." But if he believed the conflict was serious enough to merit resignation, to protect the college, why wasn't his resignation effective immediately? It's not as if he is necessary to the board's functioning.
Having a No-Bid Contract with the County
The reason all of this rings a bit false is that the resignation has little to do with this conflict. There is another, more important conflict, as well as an important project that has led the commissioner to this excessive handling of his community college conflict.
The other conflict is an odd one. According to an article in the Pilot last week, the commissioner is the CEO of a software company that supplies law enforcement offices across the state and in other states. Since it would not have been acceptable to sell the software to the county sheriff's office, the company gave it to the county. But the county has a maintenance agreement that pays the company $24,000 a year.
According to a July article in the Pilot , the state has an unusual law that allows local governments to do business with a company in which an elected official has a direct financial benefit if the value of the contract does not exceed $25,000 and if the population of any town in the county does not exceed 15,000. Last year, the maximum value was raised to $40,000. Frayda Bluestein, a professor of government at UNC and one of the authors of the wonderful Coates' Canons local government blog, told the reporter that "the exemption in the law is intended to help small areas where there may be limited access to certain services."
That is not the case here. The software company is not a local provider, but a national provider that happens to be based locally. And although each annual contract is under the limit, it is apparently unbiddable, since the maintenance is of the company's software.
It appears that the deal as a whole is good for the county, but that is not the only consideration. Also important is how it appears to the public. What the commissioner has said is not helping that appearance: "I would just as soon give it away. It is not about the money. We made it $24,002 (the contract). We aren't anywhere near the maximum allowed. Moore County is our home. We wanted to have our own county [as a customer]. That was important to us."
If he'd just as soon give it away, why does he charge $24,000 a year for the maintenance contract? And why should it matter to the public that he wants his county as a customer? When you put this feeling another way — he doesn't want a competitor in his own backyard — it doesn't look so good.
The chair of the board of commissioners feels that the commissioner wants the contract so that he has a local place to showcase his product. If the software company does take its clients over to the sheriff's office, then this might actually be an issue, because it would provide a clear benefit to the company in addition to the maintenance contract. It would even mean that the gift of the software (which, of course, costs the company nothing) was not really a gift at all, but a valuable investment.
The Real Issue
It is this possibility that ties these two conflict situations into what this whole controversy is all about: the building of a new jail and sheriff's office. The software CEO is a proponent of this new building, and one of the arguments being made by those who oppose it is that a spanking new sheriff's office will be a far better showcase for the software company to display its wares.
What is interesting is that the commissioner chose not to stop charging the county for software maintenance, which would have dealt with the more serious of the two conflicts, and instead went overboard on the more minor conflict, his seat on the community college board. It's good that he didn't want the college to be tangled in the fight over the new jail, but this could have been accomplished by agreeing to vote separately on the college's budget item, with the commissioner recusing himself.
The County Attorney as Ethics Adviser and Ethics Code Drafter
It also doesn't help that the only person providing ethics advice relating to these matters has been the county attorney, whose comments are limited strictly to the law. She says that the dealings between the county and the software company are perfectly legal, but says nothing about the appearance of impropriety or the issue of using the sheriff's office as a showcase.
This same county attorney wrote the county ethics code (attached; see below), really a code of conduct for the county commission, with references to state ethics laws. The ethics code was passed in November. Her code refers to ethics provisions as "minimum standards," and there is a provision which refers to appearances of impropriety:
-
Although opinions may vary about what behavior is inappropriate, this
board will consider impropriety in terms of whether a reasonable person
who is aware of all of the relevant facts and circumstances surrounding
the board member's action would conclude that the action was
inappropriate.
Politicizing the Ethics Process
The final issue in this matter arose at the meeting where the county commission approved the ethics code. Its chair wanted to make three last-second amendments, all of which pointed directly at the software CEO, community college board member, and supporter of purchasing certain property for the new county jail (and, to a lesser extent, his former partner and still chairman of the board of the software company, who is also a member of the county commission).
The proposed amendments were as follows:
-
A prohibition against a commissioner from serving on any panel whose
budget is overseen by the county board
Restrictions involving the competitive bidding of equipment or software
A prohibition against the county's purchase of land at a price exceeding appraised value
Once again, it is clear that the debate over ethics issues in Moore County is really a debate between two factions on the commission, and that the principal issue is not the community college or even the software contract, but the new jail. There appears to be no one in the county government who is willing to acknowledge that, although there is a new ethics code, the county has no ethics program (part of the problem is the terrible state ethics code requirement passed in 2009; see my blog post on it). The entire program sits on the shoulders of the county attorney, who speaks only of the law. There is no training program, no independent adviser or enforcer, and no disclosure. The guidelines are not clear, and the entire process is politicized.
The Pilot editors, at least, recognize aspects of the problem. But someone needs to look around at the rest of the world, and recognize that the new ethics code is primarily a code of conduct for the county commission, and nothing more, and that neither the county commissioners nor the county attorney seem to understand what a government ethics program is or why ethics should not be politicized.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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