Confusing Pre-Existing Conflicts with Conflicts Created by Events
Many people believe that conflicts of interest are in and of
themselves bad, and that government ethics laws should prevent those
with conflicts of interest from becoming public servants. Many
people believe that government ethics is about being good or bad.
When the two come together in one person and one speech, the result can be fireworks.<br>
<br>
People who have misconceptions about government ethics also tend not to be able to distinguish between different sorts of conflict situation. Here, the problem was distinguishing between pre-existing conflicts and conflicts created by events.<br>
<br>
The person, in this case, is Connecticut gubernatorial
candidate past and future Tom Foley, who testified yesterday before the state
legislature's Government, Administration and Elections Committee in
favor of <a href="http://www.cga.ct.gov/2013/TOB/s/pdf/2013SB-00727-R01-SB.pdf" target="”_blank”">Senate
Bill 727</a>.<br>
<br>
Here is the operative language of the bill:<blockquote>
No public official, state employee or member of the immediate family
of a public official or state employee shall receive one thousand
dollars or more during a calendar year from (1) a state contractor
that derives five per cent or more of its revenue from state
contracts or from any other person other than a state employee that
derives five per cent or more of his or her income from the state or
any state agency, (2) an organization for which five per cent or
more of its members who reside in this state are employed by the
state or a municipality, (3) a lobbyist or business organization
that employs one or more communicator lobbyists, (4) an individual
who is restricted or prohibited from contributing to a political
candidate for the office of state senator or state representative or
a state constitutional office in the maximum amount permitted for
individuals, or (5) an agent of an individual or entity described in
subdivisions (1) to (4)...</blockquote>
In short, the bill prohibits from state public service anyone who
works for or represents, or has a spouse who works for or
represents, a state contractor, a public employees union, a law firm
that does lobbying, or a business that lobbies or employs the services of a lobbyist. It is not
enough for someone to withdraw from matters where such a conflict exists.
They simply cannot have or accept the job or contract work.<br>
<br>
The view that conflicts must be prohibited is not all that uncommon. Many ethics codes prohibits
conflicts from existing. Such a prohibition is often not even discussed,
apparently because officials wrongly believe that this is what is done, this is
what government ethics requires.<br>
<br>
<b>Confusing Types of Conflict</b><br>
There are two problems here. One problem is that two types of
conflict are being confused. The proposed provision is worded
like a gift provision (which applies only to conflicts created by the event of the gift), and yet it also applies to the payment of a salary to a public servant who
held the job when she ran for office. This is not a gift at all, but
a relationship that, in certain circumstances, would be a
pre-existing conflict. This conflict can easily be dealt with
through withdrawal, and it carries no appearance of impropriety.<br>
<br>
The other type of conflict could actually be construed as a
gift: a job offer made to a public servant, in most cases
legislators, who are given part-time pay. A lot of the jobs
given to legislators are given to them <i>because</i> they are
legislators, because they have power and connections that can be
valuable to businesses, nonprofits, law firms, and unions. But such
job offers should be dealt with separately, both from gifts and from
pre-existing conflicts. And they should be dealt with carefully, in
such a way that only those jobs that create a serious appearance of
impropriety are prohibited.<br>
<br>
<b>How Best to Handle Job Offers</b><br>
A better approach is to prohibit officials from soliciting
employment offers from anyone who does business with his agency. For
a state legislator or council member, this should be generalized to
apply to offers from anyone who does business with the government.
This approach is common in post-employment provisions. But it is
less common with respect to sitting legislators, who are the
principal target of this kind of rule.<br>
<br>
An alternate approach is to require withdrawal from all matters
relating to one's employer or, if the employer represents those
doing business with the government, from all matters relating to the
clients of one's employer. This approach effectively removes
the advantage a legislator has in getting jobs with those doing
business with the government.<br>
<br>
<b>Finger Pointing</b><br>
It's not just the prohibition of a wide range of jobs that got even
Foley's fellow party members up in arms. It's also the way Foley
pointed his finger at legislators and accused them of crimes.
According to <a href="http://nhregister.com/articles/2013/03/26/news/doc51511c4d5347788108243…; target="”_blank”">an
article in today's New Haven <i>Register</i></a>, Foley told the GAE
Committee, "Part of the problem is that the foxes are running the
henhouse. Our ethics rules start off as ethics light and then on
appeal everyone is given a pass because people have a right to earn
a living. That is the same argument you hear in a foreign country
and the police demand a bribe with the excuse that they are not paid
enough. That may be true, but it is still a bribe. In most of those
countries, unlike here, it is illegal. … Let’s make this sleazy
practice illegal here, too."<br>
<br>
It's not that Foley doesn't have a point. But the name-calling
("foxes running the henhouse," "sleazy") and the implication that
conflicts are equivalent to crimes such as bribery were completely
unnecessary. Not only does it make legislators defensive, but it also equates conflicts of interest with bad
character and crime. This undermines the cause of ethics reform.<br>
<br>
Why
would someone do this? Because it is also very popular to say things
like this. It plays on the public's lack of trust in politicians,
exactly the opposite of what ethics reform should do, which is
increase the public's trust in government.<br>
<br>
As someone seeking ethics reform, I have used the fox and henhouse
metaphor only once in seven years of blog posts (with respect to
special districts created and run by developers), and I make it
clear that government ethics is not about crime.<br>
<br>
Foley, like too many candidates and good government groups, knows
that you get the public's attention when you point fingers and make
loose accusations. But this is the wrong approach, and this time it
backfired. Not only did legislators not like being called foxes and
sleazy criminals but, according to <a href="http://courantblogs.com/capitol-watch/gops-tom-foley-clashes-sharply-wi…; target="”_blank”">Christopher
Keating's Capitol Watch column yesterday on the Hartford <i>Courant</i>
website</a>, one state legislator responded to Foley's speech, "I
do take that personally. I don’t appreciate being referred to as a
hen in the henhouse. The Capitol is not a henhouse, and I am not a
hen.” That's the first time I've heard objections to that side of
the metaphor.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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