How to Handle Misrepresentations of Ethics Advice

It is very damaging when a government official misrepresents ethics
advice he has been given. What should an ethics officer or
commission do when this happens? In many cases, such advice,
especially when it is provided informally, is confidential. When an
official makes a public statement about such advice, the EC
spokesperson can say nothing but "No comment." This allows the
official to say whatever he likes.<br>
<br>
This situation was answered skillfully by the Massachusetts Ethics
Commission this morning. According to <a href="http://www.capecodonline.com/apps/pbcs.dll/article?AID=/20130808/NEWS/3…; target="”_blank”">an
article today in the Cape Cod <i>News</i></a>, state senator Daniel Wolf
responded to a formal advisory opinion from the state EC not only by
saying, "I disagree with this opinion and will be working to
rectify what I believe to be an unfortunate conclusion based on a
flawed process." This is a reasonable thing to say, and could lead to a
valuable debate about a rule that, like many ethics rules, may have
damaging unforeseen consequences that could be prevented by a minor
amendment.<br>
<br>
But the senator did not stop there. He also said that "the
commission's staff led him to believe that no such conflict would
exist [in] an informal opinion it had provided in advance of his
first election to the state Senate in 2010."<br>
<br>

When the reporter spoke with the EC's spokesperson, he said that he
could not confirm or deny the EC's actions. And in most cases, the
matter would have stopped there.<br>
<br>
But the Massachusetts EC instead drafted a press release (attached;
see below) "to correct inaccurate comments
made by Senator Daniel Wolf regarding advice he received from the
State Ethics Commission." Unfortunately, the press release does
not include these comments, but it does provide its side of the
story regarding the 2010 advice:<blockquote>

the Commission’s General Counsel
orally provided advice on how the conflict of interest law applied
to Senator Wolf. That advice was provided to Senator Wolf’s
aide, who had requested advice on Senator Wolf’s behalf.  The
Commission’s General Counsel followed up that discussion by
summarizing her advice in an email to the same aide, dated
November 23, 2010. That email stated in part:  “I also
advised you to check whether Cape Air has any contracts with the
state, since Mr. Wolf is not allowed to have any interests, direct
or indirect, in state contracts.” Senator Wolf did not
follow up on that advice, nor did he inform the Commission of Cape
Air’s contracts with Massport.</blockquote>

The press release also counters what the senator said by noting
that "[i]n his dealings with the Commission,
Senator Wolf was never led to believe that no conflict existed; in
fact, he was advised that he likely had a substantial problem
under the conflict law, and that he would be given specific advice
after he provided the Massport contracts."<br>
<br>
It wasn't until 2013 that the senator provided the contracts to
the EC, and the EC made a formal advisory opinion that said he
would either have to give up his stock in Cape Air or resign from his position.<br>
<br>
It's worth noting that the general counsel
followed up her informal advice with a written statement of that
advice, so that there would be no doubt in the future what advice
had been given.<br>
<br>
Drafting a press release such as this one not only deals well with
a misrepresentation of advice (whether intentional or not doesn't
matter), but it also makes it far less likely that such
misrepresentations will occur in the future (officials will feel obliged to go back to the written advice before speaking about it). Since the senator is
running for governor, everyone in the state government, and in the
state's local governments (over which the state EC has
jurisdiction), will now know about the EC's policy of not allowing
such misrepresentations to go unchallenged.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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