Playing Games with Local Government Ethics

Explaining a political decision on the basis of government ethics, when that really isn't the reason, can lead to government ethics reform made on the basis of politics. That's what appears to have happened in Boerne (TX), a small "city" of 6,000 residents outside San Antonio.

According to an article in the Boerne Star, two events have intertwined:  expansion of the city's historic district and an amendment to the city's ethics code. Opponents of expansion complained that the wives of two council members who supported expansion sat on the Historic Landmark Commission. They argued that this created a conflict of interest, although it isn't clear exactly which interests are in conflict -- no personal interests appear to exist.

When the historic district matter actually came to a council vote, one of the husbands voted against expansion, saying that the public was overwhelmingly opposed to it. He is a supporter of the mayor.

The term of the wife of the other council member, who voted for expansion, soon came to an end, and the mayor chose not to nominate her, arguing that there was concern about a conflict of interest, since her husband was on the council. Two of the five council members, including the husband, voted against the mayoral nominee (although it is a question whether the husband should have recused himself from being involved with the possible replacement of his wife on the commission, even though the city's ethics law requires recusal only where there is a financial interest involved).

At a council retreat, the husband supposedly proposed an amendment to the ethics code making it unlawful for the spouse of a council member to serve on a city board or commission. After calling this a conflict of interest, the mayor could hardly oppose such an amendment.

Caught in the middle was the other husband, a supporter of the mayor, the only person who would be directly affected by the amendment. He was also possibly the target of the amendment, possibly for his change of heart on expansion of the historic district, possibly just out of political vindictiveness.

What's most important is that by arguing there is a conflict of interest -- even if the actual interests are unidentified -- you in effect create a conflict and may be required to remedy the problem. Games of chess or chicken should not be played with government ethics.

There is a serious inconsistency at the heart of the council debate over ethics reform in Boerne. One principal controversy, according to another Boerne Star article, involves the definition of what is an "economic interest." In Boerne, conflicts do not involve non-economic interests.

And yet the other principal controversy involves a non-economic interest, that is, the interest of a council member's spouse to be able to serve as a volunteer on a board or commission.

There certainly is an argument against allowing council members' spouses to sit on important boards and commissions. Council members may be seen as misusing their positions to gain more power for themselves via appointment of their spouses.

But this is not a government ethics problem, except when appointments are involved:  spouses should not vote on appointments that involve their spouses, even though no financial interest is involved. It is not a conflict for one spouse to vote on something his spouse formerly voted on.

On the other hand, there is an ongoing conflict when a local government attorney's spouse sits on a board or commission before which the local government attorney's office argues. In such a situation, a board member cannot recuse himself every time his wife or one of her colleagues appears before the board. The spouse should not serve on a board where such conflicts will recur.

Robert Wechsler
Director of Research-Retired, City Ethics

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