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Personal Conflicts and Technicalities
Monday, May 11th, 2009
Robert Wechsler
Technicalities should play little role in discussions about local
government ethics. But because there are ethics laws, people
unashamedly talk about ethics technicalities. They see ethics laws as
like any other law, not as minimal requirements that deserve more
thinking about what's appropriate than about what's legal.
According to an article in Saturday's Telegram, the board of selectmen (an elected executive body) of the town of Sturbridge (MA) was faced with a vote on the reappointment of a conservation commission member who happens to be the father of one of the selectmen.
The state ethics code's conflict provision reads as follows (elected officials are considered "municipal employees"):
According to this provision, the son has an easy decision to make with respect to his vote. A volunteer conservation commission member has no financial interest in being reappointed, so there is no conflict.
But wait. According to another selectman, there is a financial interest and, therefore, a conflict under the law: conservation commission members get a tiny stipend (it appears to average $100 a year), which will, in any event, be removed if the budget is passed on June 8. The selectman says he talked to the state ethics commission (which handles local government ethics matters), implying that commission staff agreed.
This is ridiculous. A hundred dollars a year is clearly not a financial interest. Financial interest isn't the point here. The point is that a son is voting for his father. There is a possible conflict between the son's obligations to his constituents and his obligations to his father.
The law says there is no conflict, but there is a conflict, and it's not on account of a technicality. In addition, because two of the five selectmen oppose the father, the son's recusal would kill the reappointment. What would you do?
The son had no legal obligation to recuse himself. However, I think he should have looked at the law as a minimal requirement, considered the appearance of impropriety involved in a son voting for (or against) his father, and recused himself anyway.
His father would not have been reappointed, but the town government, which seems fiercely divided (according to the article, the son and the complaining selectman came to fisticuffs at a selectmen's meeting a couple of years ago), would have been taught a useful lesson.
The worst thing to do was to argue a technicality as the basis for a recusal, and then for the son's colleagues to get involved in this argument rather than to help the son make a difficult but responsible decision.
Please note that this is yet another example of how important non-financial interests can be. Limiting conflicts to financial interests is a common problem. However, conflicts by their nature have nothing to do with money. This is why the City Ethics Model Code conflict provision includes both personal and financial benefits. With the right conflict provision, there would have been no dispute, and clearer guidance, in this situation.
Robert Wechsler
Director of Research-Retired, City Ethics
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According to an article in Saturday's Telegram, the board of selectmen (an elected executive body) of the town of Sturbridge (MA) was faced with a vote on the reappointment of a conservation commission member who happens to be the father of one of the selectmen.
The state ethics code's conflict provision reads as follows (elected officials are considered "municipal employees"):
Section 19. (a) Except as permitted by
paragraph (b), a municipal
employee who participates as such an employee in a particular matter in
which to his knowledge he, his immediate family or partner ... has a
financial interest, shall be punished by a fine of not more than
three thousand dollars or by imprisonment for not more than two years,
or both.
According to this provision, the son has an easy decision to make with respect to his vote. A volunteer conservation commission member has no financial interest in being reappointed, so there is no conflict.
But wait. According to another selectman, there is a financial interest and, therefore, a conflict under the law: conservation commission members get a tiny stipend (it appears to average $100 a year), which will, in any event, be removed if the budget is passed on June 8. The selectman says he talked to the state ethics commission (which handles local government ethics matters), implying that commission staff agreed.
This is ridiculous. A hundred dollars a year is clearly not a financial interest. Financial interest isn't the point here. The point is that a son is voting for his father. There is a possible conflict between the son's obligations to his constituents and his obligations to his father.
The law says there is no conflict, but there is a conflict, and it's not on account of a technicality. In addition, because two of the five selectmen oppose the father, the son's recusal would kill the reappointment. What would you do?
The son had no legal obligation to recuse himself. However, I think he should have looked at the law as a minimal requirement, considered the appearance of impropriety involved in a son voting for (or against) his father, and recused himself anyway.
His father would not have been reappointed, but the town government, which seems fiercely divided (according to the article, the son and the complaining selectman came to fisticuffs at a selectmen's meeting a couple of years ago), would have been taught a useful lesson.
The worst thing to do was to argue a technicality as the basis for a recusal, and then for the son's colleagues to get involved in this argument rather than to help the son make a difficult but responsible decision.
Please note that this is yet another example of how important non-financial interests can be. Limiting conflicts to financial interests is a common problem. However, conflicts by their nature have nothing to do with money. This is why the City Ethics Model Code conflict provision includes both personal and financial benefits. With the right conflict provision, there would have been no dispute, and clearer guidance, in this situation.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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