Voting For or Against Is Not the Question; Independence Is the Answer
Some people incorrectly believe that a conflict of interest requires an official
not to vote in such a way as to benefit himself. That is, if the
official might benefit from a vote, it's okay for him to vote
against it, because that shows that the official is not seeking to
benefit himself.<br>
<br>
What is odd is to see this position taken by an ethics commission.
This is what happened in <a href="http://www.ethics.state.ms.us/ethics/ethics.nsf/OpinionsByDocId/DE21B9C…; target="”_blank”">a
June 14 advisory opinion from the Mississippi Ethics Commission</a>.
The situation was that six state legislators worked for Medicaid
providers. The question was whether they could vote against
expansion of Medicaid, pursuant to the new federal program.<br>
<br>
Note this odd question: not whether they had to withdraw from
the matter, but whether they could vote a certain way on the matter.<br>
<br>
The EC could have ignored the formulation of the question, or noted
that it was inappropriate, that an EC can only advise re withdrawal,
not re voting one way or another. In fact, in a "Caution Advised"
section, at the end of the advisory opinion, the EC provides an
accurate description of withdrawal.<br>
<br>
But in the paragraph before advising caution, the EC writes, "The
commission consistently advises public servants to fully recuse
themselves from any matter which could result in a pecuniary benefit
to their employer. Id. However, voting against a measure which would
presumably benefit one’s employer cannot be said to violate [<a href="http://www.mscode.com/free/statutes/25/004/0105.htm" target="”_blank”">the
basic misuse of office provision</a>]."<br>
<br>
In other words, because there is no withdrawal provision (which
itself is a mistake), the EC takes the position that withdrawal is
required only to the extent the official would actually benefit from
the way he voted.<br>
<br>
There are two principal problems with this. One, a conflict
situation is not only about financial benefit. It is about having
obligations that are in conflict. A legislator who has an employer
who may benefit from a legislative act is caught between an
obligation to the employer and an obligation to the public. If he
votes against his employer's interest, that is, against his personal
interest, then he may be in hot water with his employer. Withdrawal
protects an official either way. He can do nothing to help or hurt
his employer.<br>
<br>
What if the official is himself the employer? An employer has
obligations, too. Hurting one's business hurts one's partners,
employees and, often, one's customers.<br>
<br>
The second problem is that placing the emphasis on the way an official
votes ignores all the other actions an official can take. In fact,
an official can, under the EC's interpretation of Mississippi law,
put together a majority in favor of an action that benefits him, and
then either not vote or vote against the action, knowing it will
pass anyway.<br>
<br>
Withdrawal from participation, as the EC so clearly states after its damaging
interpretation, includes much more than voting.<br>
<br>
In this particular instance, there is another problem with the EC's
interpretation: it is seen as a political decision specific to
the case at hand. This is due to the fact that EC members are
political appointees. Any official who appoints EC members, and any
EC member who allows himself to be appointed by someone under her
jurisdiction, should be fully prepared to have every decision seen
as a political decision. This undermines trust in the ethics program.<br>
<br>
This is especially true, as in this case, when a high-level official (here, the House Speaker)
requests the opinion, and when, as in
this case, the EC's decision will affect a vote that really has
nothing to do with conflicts of interest.<br>
<br>
<a href="http://www.clarionledger.com/article/20130623/COL0601/306230053/Geoff-P…-?odyssey=mod%7Cnewswell%7Ctext%7CHome%7Cp&nclick_check=1" target="”_blank”">Jackson <i>Clarion-Ledger</i> columnist Geoff Pender called</a> the EC opinion "one of the most unethical moves in state
government recently."<br>
<br>
<a href="http://djournal.com/bookmark/22963617" target="”_blank”">The political editor
for the Northeast Mississippi <i>Daily Journal</i></a> wrote that the
House Speaker "turned to the Ethics Commission to try to get the
votes to pass the existing program while not allowing a floor vote
on expansion," and referred to one of the EC members as "a close
political supporter of the speaker."<br>
<br>
And <i>Clarion-Ledger</i> blogger <a href="http://blogs.clarionledger.com/samrhall/2013/06/24/who-will-oversee-the…; target="”_blank”">Sam
R. Hall started his blog post</a> by recognizing part of the fallacy in the EC's opinion: "When it comes to a conflict of interest between
an elected official’s civic and professional duties, the right and
ethical thing to do is to refrain from voting on a particular
matter." He went on to call the opinion "an unabashedly political
ruling."<br>
<br>
Using an ethics program to win a legislative vote is inexcusable.
But since the whole affair was simply about a vote, none of this
will matter to the political animals who asked for or gave the
advice. It will only affect the public trust, which no one seems to care much about. The Mississippi EC
needs to be independent from those under its jurisdiction.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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