Taking the Big Ethical Step from Government Lawyer to Mayor
How can a lawyer responsibly deal with the following situation? A
former city attorney, he has been general counsel to the city's <a href="http://www.houstonsports.org/" target="”_blank”"><b>sports authority</b></a>, which
oversees three major sports with three stadiums (and there's talk of a
fourth, which the lawyer has publicly supported). <a href="http://www.andrewskurth.com/people-GeneLLocke.html" target="”_blank”"><b>The lawyer</b></a>
is also special counsel to the city's transit and port authorities,
which the firm represents. And the firm is bond counsel to the school
district.<br>
<br>
The lawyer is running for mayor. According to the blog <a href="http://muse-musings.blogspot.com/2009/10/gene-locke-and-sports-authorit…; target="”_blank”"><b>Musings</b></a>
(with links to official sites for each piece of information), the
city's mayor
appoints
half the members of the sports authority (with council approval), five
of nine members of the transit authority, and two of seven members of
the port authority, with joint appointment of a third.<br>
<br>
General counsel to the sports authority (another lawyer from the same
firm has now taken this position) has been paid $640 an hour and billed
$574,000 in fees from January 2007 through the end of August 2009,
according to the blog <a href="http://www.texaswatchdog.org/2009/10/sports-authority-ties-could-get-st…; target="”_blank”"><b>Texas
Watchdog</b></a> (with a link to the billing).<br>
<br>
The first thing such a lawyer should not do is what he did. Here's how
he
responded to questions about possible conflicts:<br>
<ul>
When I am mayor every decision I make
will be based solely on what is
best for Houstonians. I am proud of the broad coalition of support I
enjoy in this race, but when I am elected my only debt will be to the
people of Houston.<br>
</ul>
Is it a conflict for a mayor to appoint members of a body that
has
hired or may hire his law firm? Would it be enough for him to resign
his partnership if he was elected, when his business associates might
benefit from his actions?<br>
<br>
Yes, the mayor's power is, legally,
indirect, appointing rather than guiding policy. Would it be
appropriate for such a mayor to say anything concerning authorities
represented by his firm? How could a mayor not speak out about major
issues involving the city's sports teams, transit system, and port
authority?<br>
<br>
The Texas Watchdog blog asked <a href="http://www.kines.umich.edu/faculty/full-time/rosentraub.html" target="”_blank”"><b>Mark
Rosentraub</b></a>, a University of Michigan sports management professor
who specializes in sports/city issues (he has a Ph.D. in Public
Administration), what he thought should be done:<br>
<ul>
“People change jobs all the time,”
Rosentraub said. “But what has to be
done is to look at the ethics laws, see just how he will divest himself
from his law firm, and then monitor that person’s behavior. He would
most likely have to recuse himself if that sports authority has
business before the city council.”<br>
</ul>
Prof. Rosentraub was focused on the sports authority, but
what about
the other authorities? Can a mayor choose not to participate in sports,
transit, and port authority issues, and not only when such issues come
before the council?<br>
<br>
And would it be enough to monitor the mayor's behavior, as Rosentraub
suggests? What about monitoring his former partners and associates, who
might be acting in his stead? A board's
counsel has a lot of power. How can anyone monitor how much the mayor
affects the behavior of his former business associates, who might try
to get the authorities to implement the mayor's policies, when they are
supposed to act independently?<br>
<br>
If this lawyer is elected as mayor, can he deal responsibly with this
difficult situation? Will an appearance of impropriety hang over the
sports authority's activities, and possibly the other authorities'
activities, as well? Would the most responsible thing be not to run
at all? Can the leading partner in the government department of a firm deeply
involved in city government become, effectively, a principal client, if
not directly, at least in the eyes of the public?<br>
<br>
One partial solution would be to give the council, or a committee of
independent individuals, the power to select appointees to the
authorities that the mayor's law firm has represented. This would be an
odd sort of recusal, because usually people think of voting, not
selecting, when they think of recusal. But it would send the message
that the mayor understood the problem and was using his ethical
imagination to deal with it as responsibly as he could.<br>
<br>
Prof. Rosentraub also referred to the ethics laws, but this is not the
sort of situation that ethics laws commonly deal with. This is a
situation that requires not a legal interpretation, but ethical
leadership.<br>
<br>
The mayoral candidate has not started off well in this regard. In what
he said about his possible conflicts, he
misidentified the problem: it's
not about who he's indebted to. It's a
matter of who he'll favor and how he will benefit his business
associates or work with them to benefit him. It's also a matter of
appearances of impropriety.<br>
<br>
The mayoral candidate also needs to explain why he was getting paid $640 an hour for government work. This will look to everyone like a sweetheart deal and will not, therefore, make people likely to feel he does not have his own and his firm's interests at heart. If he cannot explain the fee, he should seriously consider making restitution. Better to start out admitting a wrong than hoping the issue will go away.<br>
<br>
Everyone says, as Gene Locke (the lawyer in this case study) said, that
they're going to do what's best for the people. Government
ethics is intended to make that promise more likely to be upheld and,
thereby, to gain
the trust of people who too often don't believe it when politicians say
it.<br>
<br>
Locke should make it clear exactly how he is going to responsibly
handle this situation. Until he does, he will rightly be hounded by
good government advocates and by his opposition.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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