The Public-Interested Argument for Recusal

Buried in my blog entry on the Louisiana legislators' attempt to undermine recusal on constitutional grounds is a short discussion of what I refer to as 'the public-interested side' of recusal. I would like to talk a little more about this, because I think the failure to discuss it enough is a serious problem.

When a government official has a conflict of interest, he or she is forced to choose between conflicting obligations. We all have this problem every day: for example, do I spend more time with my son, or my daughter, or my wife, or my work?

Government officials are a special case, because they have a fiduciary obligation. Other professional have a similar obligation, but governmental officials' obligation is not just to clients or patients or their boss, but to the public. They are required to act only in the public interest, not in their personal interest, or in the interest of their family members or their business associates or friends.

The emphasis in conflict of interest discussions is on government officials who put their personal interests ahead of the public interest. But there is another side of the coin: government officials who put the public interest ahead of their personal interests. What do ethics laws have to offer to the good guys, to those who favor the public interest? What they have to offer is the ability to say, I can't be involved with this because I have a conflict of interest. Ethics laws allow thoughtful, ethical officials the right not to have to choose, the right not to have to reject their brother-in-law's zoning application, their sister's job application, their wife's boss's request for a no-bid contract.

Click here to read the rest of this blog entry.

Getting back to the Louisiana situation, what person should ever be in the position of having to make a neutral, responsible decision concerning his or her parent's job? If you want more than anything to protect that job, you are not being a responsible official. If you want to be fair, you are not being a good son or daughter. Conflicts are not about not voting one's own interest, but about not being forced to (or allowed to) choose between conflicting obligations.

That's why I hate to see ethics codes that outlaw conflicts. Conflicts happen. Yes, an individual with too many conflicts should not serve. A developer should never be on a board that deals with zoning. A municipal contractor should never be in a position to deal with contracts. But for most people, conflicts occur only infrequently, and it is how they are dealt with, and how they are analyzed, that is important.

Why is the public-interested argument for ethical behavior by government officials so rarely mentioned, that is, why is it so rarely considered that an official might actually want to act in the public interest and should be protected from the demands of other obligations? I think it's a sign that, for all the talk about ethics, there is an assumption that people are self-interested and that the only protection necessary is of the public, not of officials. Officials, for the most part, buy into this.

And the more people buy into this assumption, the more true it is, because even more than people are self-interested, they are conventional. If they ignore their personal interests (or criticize others for giving precedence to their own), they are considered unusual, not one of the boys, a goodie-goodie. As long the convention is that government officials are self-interested (and that's okay) and that ethics laws are nothing but a nuisance (or meant for the corrupt, which none of us certainly is), it's hard to see the other side, the other argument for requiring recusal when there is a conflict of interest: the protection of officials from having to choose between their conflicting obligations.