A Few Interesting Conflict Issues Raised in a Western Suburb of Boston
According to <a href="http://www.metrowestdailynews.com/news/x945638644/Ashland-selectmen-see…; target="”_blank”">an
article in the Metro West <i>Daily News</i> on Friday</a>, the Ashland (MA)
board of selectmen sent two reported allegations of possible acts of ethical
misconduct to the state ethics
commission. The request sought not enforcement, but clarification. I hope by
"clarification" the board meant that it is seeking advice about
continuing the behavior. Its other option was to file a complaint with
respect to past behavior. But it did not seem to want to "accuse" its fellow selectman of anything.<br>
<br>
<b>Knowing Too Much Is Not a Conflict</b><br>
The first allegation is complex, but the answers are, I think,
relatively simple. It arises from the fact that the selectman is also a
police detective in the town, and that one of his charges was to
investigate the town's garbage and recycling contractor with respect to
mixing trash and recycling. Apparently, very little mixing was found.
Now the contract is up for renewal, and the detective is involved in
discussions about it.<br>
<br>
There are three questions raised here. First, is the detective
conflicted? Does his investigation create a relationship with the
contractor that would either lead him to favor or disfavor it, or to
appear to be doing so? Is there any way he or anyone else could benefit
or be harmed by his participation?<br>
<br>
It is possible that, in doing the investigation, he met with contractor
personnel, but it is hard to believe that he would have done this
enough to establish a relationship that might lead him to be prejudiced for or against the contractor. Conflicts are based on relationships, not on knowledge. This is not true in judicial proceedings, where inside knowledge is considered prejudicial both for judges and for jurors. This is another way in which government ethics differs from judicial ethics.<br>
<br>
<b>Confidential Information By Itself Is Not an Ethics Issue</b><br>
Second, the allegation questions whether the detective divulged to
the selectmen confidential information he learned from the
investigation. This is not an ethics issue, because he would be
divulging such information to help the selectmen make a better
decision. His own interests, or his interests as a detective, would not
be involved. If the information favored or disfavored the contractor,
it would be based on evidence, not favoritism.<br>
<br>
<b>Disclosure of One's Multiple Roles</b><br>
Third, the allegation questions whether the detective, when he attended
a meeting with another selectman, the assistant town manager, and
contractor representatives, disclosed that he was both a police
detective and a selectman. Even if there was no conflict between his
two roles, it is true that he should have disclosed both roles to the
contractor when meeting with its personnel.<br>
<br>
It's interesting that, despite being involved in discussions about the
contract, the detective withdrew from final deliberations and from the
vote on the contract. I don't think this was necessary, but if he was
under attack, it was probably the best thing to do.<br>
<br>
<b>The Conflict of an Employee on a Governing Board</b><br>
The second allegation involves a more common problem when an employee
also sits on a town's governing board. The detective wrote to two
fellow selectmen offering harsh opinions about the town manager.<br>
<br>
First of all, as the board of selectmen later recognized, according to <a href="http://nuweb9.neu.edu/firstamendmentcenter/?p=797" target="”_blank”">a piece by
the Metro West <i>Daily News</i> editor last week</a>, this was itself an open
meetings violation.<br>
<br>
Second, the town manager is the appointing authority for the police
department, and he is in turn overseen by the board of selectmen.
Therefore, the detective is in the position of overseeing the man who
appointed and oversees his boss.<br>
<br>
The town counsel says that there could be a financial conflict of
interest, because his conduct could affect the town manager's contract.
But I don't think the financial or contract consideration is required
for there to be a conflict here. The real conflict is the conflict any
employee on a governing board has: he is both manager and
employee.<br>
<br>
These two hats are hard to reconcile. As selectman, he is
making decisions that affect those above him and his peers. Wearing these two hats is
difficult on his fellow police officers, as well as on his superiors and his fellow selectmen.
These problems cannot be dealt with responsibly via withdrawal from
participation when police matters arise. I favor rules preventing employees from sitting on
governing boards. It's less a problem of public trust than it is of
trust within a government organization, which is also important for the
proper functioning of government and, therefore, in the public interest.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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