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High-Level Officials and Agencies Where Their Family Members Work
Friday, March 1st, 2013
What is the best way to prevent high-level officials from
participating in matters involving departments or agencies where
their close family members are employed, without doing this
unreasonably, that is, excluding situations where the family members
have no influence and will receive no benefits?
This is the question that has been raised in Baltimore by council members, particularly the council president who, according to an article in yesterday's Baltimore Sun, says he "abstains from about 20 percent of votes before the Board of Estimates, the city's spending panel, because he has four family members who work in city government: a daughter who is a teacher in the city's Head Start program; a brother who is a laborer working for the Department of Public Works; a sister who works as a customer service representative in the Mayor's Office of Information Technology; and a brother who works in human resources in the city housing department."
Leave aside the appearance issue of a council president with four members of his immediate family working for his government. The fact is that none of these family members appears to have decision-making authority. However, there could be cases where a Board of Estimate vote may appear to favor a family member's department or program and, therefore, be seen as creating a conflict.
The problem is that it is very hard to come up with a general definition that will provide concrete guidance to officials in the various situations that arise. The current law is that a government agency is within the definition of a "business entity," so that an official cannot participate in a matter that affects an agency where a family member works. This is, as the council and ethics board have agreed, too strong a prohibition.
There's an important difference between a situation where a family member works for a contractor seeking a contract, and one where a family member works for an agency that is part of the same government. An official who helps a family member's company get a contract is seen to be favoring the family member, because (1) it will be a feather in the family member's cap, and (2) companies seeking government approval may hire such family members in order to get what they want.
On the other hand, approval of a new IT system has nothing to do with a IT customer service representative who happens to be a council member's sister. However, a 50% increase in the IT budget might be seen as a way to get the sister a good promotion.
In other words, each situation needs to be considered separately. There is no rule that can apply across the board. And yet there has to be a rule.
Two Approaches
There are two approaches that can be taken. One is to keep the law the way it is, and require officials to seek a waiver from the ethics board relating either to each family member in the government or, where the ethics board feels this is not sufficient, for each matter or sort of matter that relates to the family member's agency or department. What I mean is that the best solution may be to prohibit participation re the agency budget, but to allow participation on other agency issues. Or the best solution, say with respect to the head of a program in a department, may be to prohibit participation only with respect to that program, and give a waiver with respect to other matters.
The other approach is to allow high-level officials to participate in matters involving their family members' departments or agencies, unless the family member is an appointee or a member of a certain civil service class or higher, that is, someone who can be assumed to have sufficient influence in the department or agency. However, whenever a matter involves the department or agency of a lower-level employee, the official is required, or strongly encouraged, to seek ethics advice from the administrator, in order to make sure there would not be too strong an appearance of impropriety under the particular circumstances.
These approaches appear to be the same, in that they give discretion to the ethics board and take the onus of looking like one is helping one's family members off the official's shoulders. But there are two important differences. One is that a waiver process usually requires a public consideration and vote. Informal ethics advice does not. Two is that a failure to request a waiver is a violation of the law, while a failure to seek advice, unless it is absolutely required (which would be unusual, although desirable), is not. Since the law allows participation unless the official chooses to withdraw, there can be no ethics violation. The more thoughtful officials, and those concerned about their reputations, would seek advice; others would not.
I prefer the waiver approach. This works well in the context of close family members, because there simply aren't a lot of them. The council president is (or at least should be) an exception. Therefore, the burden on high-level officials is not great.
The Approaches Taken
Which approach have the Baltimore council and ethics board taken? Neither. The ethics board sent a bill (attached; see below) to the council, which would remove Baltimore departments and agencies from the definition of "business entity," and would allow the ethics board to promulgate rules to limit this exception. It appears that the ethics board thought it could come up with a general definition that would work. But who knows, it might have given up and required waivers or strongly encouraged the seeking of ethics advice.
The council amended this bill to make the exception a blanket one, without any limits on it by the ethics board (see attached bill, below). No waivers, no advice.
This is not a good result. The ethics board is furious. The mayor won't even sign the bill, although she won't veto it, either, despite the ethics board chair's request to do this (the mayor has apparently never vetoed a bill).
Yet another failure to consider all the alternatives, with the worst alternative being embraced by those the rule apply to, unnecessarily undermining the public's trust in them.
Robert Wechsler
Director of Research-Retired, City Ethics
---
This is the question that has been raised in Baltimore by council members, particularly the council president who, according to an article in yesterday's Baltimore Sun, says he "abstains from about 20 percent of votes before the Board of Estimates, the city's spending panel, because he has four family members who work in city government: a daughter who is a teacher in the city's Head Start program; a brother who is a laborer working for the Department of Public Works; a sister who works as a customer service representative in the Mayor's Office of Information Technology; and a brother who works in human resources in the city housing department."
Leave aside the appearance issue of a council president with four members of his immediate family working for his government. The fact is that none of these family members appears to have decision-making authority. However, there could be cases where a Board of Estimate vote may appear to favor a family member's department or program and, therefore, be seen as creating a conflict.
The problem is that it is very hard to come up with a general definition that will provide concrete guidance to officials in the various situations that arise. The current law is that a government agency is within the definition of a "business entity," so that an official cannot participate in a matter that affects an agency where a family member works. This is, as the council and ethics board have agreed, too strong a prohibition.
There's an important difference between a situation where a family member works for a contractor seeking a contract, and one where a family member works for an agency that is part of the same government. An official who helps a family member's company get a contract is seen to be favoring the family member, because (1) it will be a feather in the family member's cap, and (2) companies seeking government approval may hire such family members in order to get what they want.
On the other hand, approval of a new IT system has nothing to do with a IT customer service representative who happens to be a council member's sister. However, a 50% increase in the IT budget might be seen as a way to get the sister a good promotion.
In other words, each situation needs to be considered separately. There is no rule that can apply across the board. And yet there has to be a rule.
Two Approaches
There are two approaches that can be taken. One is to keep the law the way it is, and require officials to seek a waiver from the ethics board relating either to each family member in the government or, where the ethics board feels this is not sufficient, for each matter or sort of matter that relates to the family member's agency or department. What I mean is that the best solution may be to prohibit participation re the agency budget, but to allow participation on other agency issues. Or the best solution, say with respect to the head of a program in a department, may be to prohibit participation only with respect to that program, and give a waiver with respect to other matters.
The other approach is to allow high-level officials to participate in matters involving their family members' departments or agencies, unless the family member is an appointee or a member of a certain civil service class or higher, that is, someone who can be assumed to have sufficient influence in the department or agency. However, whenever a matter involves the department or agency of a lower-level employee, the official is required, or strongly encouraged, to seek ethics advice from the administrator, in order to make sure there would not be too strong an appearance of impropriety under the particular circumstances.
These approaches appear to be the same, in that they give discretion to the ethics board and take the onus of looking like one is helping one's family members off the official's shoulders. But there are two important differences. One is that a waiver process usually requires a public consideration and vote. Informal ethics advice does not. Two is that a failure to request a waiver is a violation of the law, while a failure to seek advice, unless it is absolutely required (which would be unusual, although desirable), is not. Since the law allows participation unless the official chooses to withdraw, there can be no ethics violation. The more thoughtful officials, and those concerned about their reputations, would seek advice; others would not.
I prefer the waiver approach. This works well in the context of close family members, because there simply aren't a lot of them. The council president is (or at least should be) an exception. Therefore, the burden on high-level officials is not great.
The Approaches Taken
Which approach have the Baltimore council and ethics board taken? Neither. The ethics board sent a bill (attached; see below) to the council, which would remove Baltimore departments and agencies from the definition of "business entity," and would allow the ethics board to promulgate rules to limit this exception. It appears that the ethics board thought it could come up with a general definition that would work. But who knows, it might have given up and required waivers or strongly encouraged the seeking of ethics advice.
The council amended this bill to make the exception a blanket one, without any limits on it by the ethics board (see attached bill, below). No waivers, no advice.
This is not a good result. The ethics board is furious. The mayor won't even sign the bill, although she won't veto it, either, despite the ethics board chair's request to do this (the mayor has apparently never vetoed a bill).
Yet another failure to consider all the alternatives, with the worst alternative being embraced by those the rule apply to, unnecessarily undermining the public's trust in them.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
| Attachment | Size |
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 Balt EC bill 1112.pdf | 0 bytes |
| Balt council bill 0213.pdf | 0 bytes |
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