Negative Conflicts of Interest
Conflicts of interest are not always positive, any more than
relationships are always positive. And conflicts are based on
relationships.<br>
<br>
We tend to think of an official using his position to help a family
member or business associate. But sometimes officials use their
position to harm someone with whom they have a negative
relationship, anyone from a former in-law (the bum who dumped my
sister) or current in-law (that woman who's driving my brother
crazy) to a former business partner or a major business competitor.<br>
<br>
These negative situations do not crop up in the news very often.
That is why it is worth noting a situation that occurred with
respect to Colorado's Public School Capital Construction Assistance
Fund. According to <a href="http://dailycaller.com/2013/10/16/state-audit-slams-colorado-school-con…; target="”_blank”">an
article today in the <i>Daily Caller</i></a>, an auditors report
recommended better conflicts of interest rules for the Fund's board.<br>
<br>
As an example of a problematic conflict situation, it gave the handling an application for a grant from a school district
that had previously rejected bids from two Assistance Fund Board
members’ construction companies. Minutes show that both members
spoke negatively about the school district's project. The auditors were surprised they
were allowed to participate in the matter.<br>
<br>
There was not a question that the members were trying to benefit
anyway by participating or that they had any interest in the school
district or in the particular grant. There was also no question that
the school district was trying to influence the members in any way.
But there is certainly a question of bias based on personal rather
than public reasons. It would certainly appear to the public that
the members might put their personal feelings – their interest in
getting back at the school district for rejecting their bids – ahead
of the public interest.<br>
<br>
And yet few if any ethics codes would prohibit participation in such
a conflict situation. The language of "benefit," the language of
"interest," the language of "influence" — none of them applies to
this situation, although the language of "benefit" might apply if it
included "harm" along with benefit (but even then, it would have to
include harm to an entity that rejected a relationship (think ex-spouse),
rather than just entities with whom the official actually has a
relationship (think spouse)).<br>
<br>
Only the language of "bias" or "impartiality" might apply, but this
is used in gift provisions, not in conflict provisions. Here is
"bias" language from the Denver ethics code, which includes both
"bias" and "prejudice." But note that this applies only to members
of the city's ethics board.<blockquote>
Any member or
employee of the board
of ethics shall disqualify himself or herself from participating
in any matter before
the board in which his or her impartiality might reasonably be
questioned,
including, but not limited to, instances where he or she has a
personal bias or
prejudice concerning a party</blockquote>
So what we have here is a situation where auditors felt there was
a serious conflict of interest requiring withdrawal, but where
ethics codes do not require withdrawal. This is a situation where
only training and advice can do the trick. Officials need to be
trained to seek advice whenever they have any relationship to a
party in a matter, whether the relationship is positive (a contract
with the party, a spouse) or negative (the party's rejection of a contract
bid, an ex-spouse). Officials need to be taught that any relationship requires
either withdrawal or a request for advice. And ethics advisers need
to recognize that, in such a situation, they should go beyond the
language of an ethics code and tell the official that to deal
responsibly with such a conflict situation, the official should
withdraw from participation. If an ethics adviser is limited to the
law, many such situations will fall between the cracks and undermine
trust in an agency.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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