A Miscellany

Anonymous

Fri, 02/11/2011 - 09:01

Ethics Reform as Part of a Financial Assistance Deal 
<a href="http://www.cityethics.org/content/applying-pay-play-ordinance-trenton&q…; target="”_blank”">Earlier
this week I wrote</a> about the application of Trenton's pay-to-play
ordinance in a case involving an Atlantic City law firm. According to <a href="http://www.pressofatlanticcity.com/communities/atlantic-city_pleasantvi…; target="”_blank”">an
article in Wednesday's Press of Atlantic City</a>, a similar
pay-to-play ordinance has been unanimously approved by the Atlantic
City council, which four years ago had voted down a pay-to-play
ordinance. 
 
Why the unanimous approval this time around? It is the result of a
deal with the state's <a href="http://www.state.nj.us/dca/" target="”_blank”">Department
of Community Affairs</a>, which according to its website is an "agency
created to provide administrative guidance, financial support and
technical assistance to local governments, community development
organizations, businesses and individuals to improve the quality of
life in New Jersey."

The deal is based on assistance with the city's large budget
shortfall, in other words, money to save the day. In addition to the pay-to-play ordinance, the DCA insisted
that the city could not approve professional service contracts or hire
or promote employees without the DCA's blessing. The recession's hit to
local governments, already burdened by irresponsible pension plans,
might have created an opening for ethics reform over the dead bodies of
local officials who have only scorn for it. 
 
Willfulness and Government Ethics 
The result of a Palm Beach County (FL) ethics proceeding was both good
and bad. According to <a href="http://www.sun-sentinel.com/news/palm-beach/fl-ethics-commission-palm-2…; target="”_blank”">an
article last week in the Sun-Sentinel</a>, a county commissioner
violated the gift provision by accepting tickets to a development board
gala from someone who has hired lobbyists on land-use issues before the
county. The commissioner said he was thinking only of the giver's
paving business, not his property development. And he reported the
gift, as required by state law. 
 
Because of his stated ignorance of the giver's status, and his
disclosure of the gift, the EC gave him only a "letter of instruction,"
which told him to "be more diligent in the future about investigating
the source of any gift and to conform his activities." And the
commissioner reimbursed the giver for the cost of the tickets. 
 
This was a good result. However, the EC's executive director says the
county is considering changing the standard for a gift violation by
adding the word "willful." This, I think, is wrong. 
 
Government ethics violations, unlike criminal violations, should not
require proof of willfulness or knowledge. One reason is that it is very difficult to
establish this. We don't really know what the commissioner knew, only
what he says he knew. 
 
The second reason is that government ethics does not usually require
knowledge or motive. These may be relevant to the type and amount of
penalty, but not to whether there is a violation or not. If you
mistakenly leave a property you own off your disclosure statement, that
is no different than if you were trying to hide it, for the purposes of
government ethics. If you accept a gift, it doesn't matter if you
agreed to a quid pro quo or not. In return, fines are relatively small and no
one goes to prison. 
 
Government ethics is not about crime, but about
dealing responsibly with conflicts, and part of that is asking anyone
who gives you a gift of any value (in this case $400) whether, directly or indirectly, he is
doing or seeking business with or trying to obtain permits from the county.
That doesn't require much. If you are unwilling to do it, that is
enough to establish a violation. If a giver lies to you, then you
should consider not accepting gifts from anyone you don't know very
well. Is that really such a great sacrifice? 
 
Indirect Interest or Appearance of Impropriety? 
According to <a href="http://www.postindependent.com/article/20110210/VALLEYNEWS/110209842&qu…; target="”_blank”">an
article in yesterday's Glenwood Springs (CO) Post Independent</a>,
there is a big controversy in Carbondale regarding whether a member of
the town's board of trustees has an indirect interest in a development
in which some of his partners from an earlier development
project, which went nowhere, are participating. It appears that many
people opposing the current development are trying to get the trustee
to recuse himself, and the board itself has split 3-3 in a vote on
recusal. 
 
A year ago, the trustee disclosed his relationship with the
development, and the town attorney said that he had no direct interest
in the development, which is clear. But does his relationship
constitute an indirect interest, and does it matter, as the trustee
insists, that those calling for his recusal are doing so because he
supports the development, that is, for political rather than ethical
purposes? 
 
This is a difficult case. A former
partner among many on a single development that never got off the
ground is not necessarily a close relation who would merit special
treatment or that, by benefiting the partner, would give the official
any personal satisfaction. But a few former partners staying together
on a second development creates at least a stronger appearance that
this is a group the trustee is a part of and, possibly, would like to
remain part of after he leaves the board. If he were to speak out or
vote against the development, this could lessen his chances of being
asked to participate in future developments. This is not an indirect
benefit, however, but an indefinite benefit. 
 
Unfortunately, everyone is talking only in legal terms, when this not a
legal issue. What is important here is not whether there is a
benefit to the trustee that is indirect or indefinite. What is
important here is that a large segment of the public appears to
reasonably think that it is the trustee's group of fellow investors who
is behind this development, and that the trustee is favoring his fellow
investors. 
 
As for the political nature of the call for the trustee's refusal, this
too is unfortunate. No one should call for an official to deal
responsibly with a conflict just because they want to get rid of his
vote. If neutral members of the public who are told the details of the
issue and taught the basic concepts (as opposed to the laws, which are merely minimum guidelines) of government ethics do not care that the trustee participates in this
matter, then there may not be an appearance problem. But I would be surprised if they didn't care. 
 
What the trustee said about the political nature of the call for his recusal is
wrong: "For me to recuse myself now is wrong." Two wrongs do not
make a right. Due to the appearance of impropriety here, the trustee
should bite the bullet and withdraw from the matter, not just from
voting on it. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
---

Search

Share This Page