Participating with a Conflict
A conflict controversy in Benson, Arizona shows how important
participation can be where there is a conflict, even when an official
does not vote. According to <a href="http://www.bensonnews-sun.com/articles/2008/08/20/news/news01.txt" target="”_blank”">an
article in the San Pedro Valley News-Sun</a>, the mayor was in escrow
to purchase property for which he was seeking to (and successfully did)
reduce the time (from six to two months) for rezoning from residential
to business. After doing this, he did not vote on the matter. He was
also involved in annexing land to the city that he was in the midst of
purchasing (the council didn't vote on this), and in participating in
plan reviews involving a building he was bidding on ("The investigation
revealed that staff felt intimidated by Mayor Fenn, resulting in
changes in the plan review of this project.")<br>
<br>
The mayor only disclosed one of the conflicts, and he filed that
disclosure five months after he began participating in the matter.<br>
<br>
The mayor says that, according to the article, "he in no way thought
his participation was going to be a problem, and had he known he would
have gladly taken a step back." However, <span>"he in no way feels he
has broken the law and if charges were to be filed he would fight them."</span><br>
<br>
The city council hired a lawyer to report on the mayor's conflicts, and
although the lawyer found substance to three allegations, she
emphasized that "the law is very careful to word that [a conflict] has
to be substantial. Again, because of those kinds of intricacies of the
law, it is very, very difficult to come to the conclusion that there is
an absolute violation of these statutory conditions."<br>
<br>
If what the lawyer found in her investigation is true, it is clear that
the mayor was acting to further his personal financial interests and
those of his business associates. Real
estate transactions and construction bids certainly involve substantial
interests. Why would a lawyer say it is "very, very difficult" to
conclude that there is an "absolute" violation of an ethics statute?
What, in fact, is an "absolute" violation, as opposed to an ordinary
violation?<br>
<br>
According to the lawyer, these provisions in the Arizona law are
criminal, which would require meeting a "beyond a reasonable doubt"
burden and, possibly, a showing of intentionality. Neither has any
place, I feel, in a conflict of interest matter.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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