A Good Ethics Settlement in Ohio

Here is the story of a good settlement reached in an Ohio ethics proceeding involving a council member from a very small city. According to a recent article in the Canton Rep, the council member voted on an addendum to the lease of a golf course despite the fact that he lived on adjoining property. He admitted to having violated the state's conflict of interest provision, but the state ethics commission chose not to refer the matter to a prosecutor (ethics violations are crimes in Ohio) due to the following mitigating circumstances:

1. The city administration had asked the council member to help with the lease negotiations.

2. The council member had not been an elected public official before.

3. The commission found no evidence that the council member obtained any financial benefit from voting on the lease.

4. The council member cooperated with the investigation.

5. The council member did not consult an attorney about whether his role in the talks might be a conflict of interest.

The first four listed mitigating circumstances are good ones. But I don't think that No. 5 should be considered a mitigating circumstance. Doing so sends the message that it is better for an official not to seek ethics advice and, therefore, better for a government attorney in the room not to say anything when a conflict situation arises. Of course, if the council member were to have sought advice and ignored it, this would be an aggravating circumstance. But the failure to seek advice at all should never be a mitigating circumstance. Officials should be encouraged to seek advice, and government attorneys (as well as officials) should be encouraged to speak out about conflict situations and to direct officials to the ethics commission for advice. Had this been done, there would have been no ethics violation.

Also part of the settlement were (1) a promise by the council member never to vote on any matter that could affect his property, and (2) a warning from the EC that any future ethics allegations would be fully investigated and that any future violation of the agreement could result in prosecution for the original conflict-of-interest violation.

What's unusual here is that the decision not to sanction the council member (in this case, by not turning the matter over to a prosecutor) was only temporary. If there are further ethics allegations, the matter could be re-opened. In other words, the EC's position is not that a first violation will not lead to a sanction, but that it will not be sanctioned only to the extent there are no further violations.

Robert Wechsler
Director of Research-Retired, City Ethics

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