High-Level Officials and Agencies Where Their Family Members Work

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?<br>
<br>
This is the question that has been raised in Baltimore by council
members, particularly the council president who, according to <a href="http://www.baltimoresun.com/news/maryland/politics/bs-md-ci-young-ethic…; target="”_blank”">an
article in yesterday's Baltimore <i>Sun</i></a>, 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."<br>
<br>

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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>Two Approaches</b><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>The Approaches Taken</b><br>
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.<br>
<br>
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.<br>
<br>
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).<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---