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Tuesday, April 19, 2011

Conflicts of Interest for Public Officials: How Broad?

Michael Carrigan, a member of the City Council in Sparks, Nevada, “says he was trying to make sure his vote on a proposed casino, one that his campaign manager helped develop, did not pose an ethics problem.” Carrigan backed the Lazy 8 casino project proposed by Red Hawk Land Co. Carrigan’s friend and campaign manager, Carlos Vasquez, worked as a consultant on the project. The question is whether the elected official’s relationship to his campaign manager who was a consultant on a project to be voted on constitutes a conflict of interest sufficient for the official to have not voted.

The Sparks city attorney told Carrigan that he could vote on the project as long as he publicly disclosed his relationship with the project consultant. The attorney was obviously thinking in terms of transparency. Carrigan made the recommended disclosure. The Nevada Ethics Commission, however, claimed after the vote that Carrigan had a conflict of interest and should have abstained even with the transparency.

In its reprimand, the commission cited ethics law that says public officials must not vote when their judgment could be affected by a commitment or relationship to someone in their household, a relative, business partner, or a person “substantially similar” to those specified. The commission classifies the campaign manager in the “substantially similar” category because Carrigan’s loyalties to his campaign manager would have affected his judgment. Caren Jenkins, executive director of the Nevada Ethics Commission, explains, “Here was a friend, a buddy, a close confidant. If Mr. Carrigan ever thought it was in his best interest to vote against the project, would he have?”

Carrigan sued the commission for its reprimand, claiming it violated his free speech rights. The Nevada Supreme Court sided with Carrigan, who pointed to the fact that he was not in business with his campaign manager. The Nevada Supreme Court said the catch-all category the commission cited failed to “limit the statute’s potential reach (or) guide public officers as to what relationships require recusal.” The state court said the law “thus chilled speech.”

In its appeal to the U.S. Supreme Court, the lawyer representing the commission argues, “State and local legislators have no personal ‘free speech’ right to cast votes on particular matters, much less ones in which they have a personal interest.” The Reporters Committee for Freedom of the Press similarly claims that rules such as Nevada’s are important to ensure politicians don’t vote based on personal interests.

Analysis:

In 2009, the U.S. Supreme Court ruled by 5-4 that a West Virginia judge should have withdrawn from case because of a risk of bias. The court majority said judges must sit out a case when a risk of bias arises because a person with a significant stake in the case “had a significant and disproportionate influence” in getting the judge on the bench. In the present case, Carrigan’s campaign manager had a significant influence in getting Carrigan elected, but did his consulting role at the casino constitute a significant stake, and, if so, was it only in the past, or did the consultant/campaign manager stand to benefit financially after the vote? 

Regarding the Nevada ethics law, a campaign manager can be regarded as similar to a business partner. The vagueness of last category in the law is poor legislation, but it does not nullify the similarity in the present case. In fact, I contend that the law does not go far enough, for it excludes friendship. Presumably a public official would want to see one of his friends benefit even if there is no financial relationship between the official and the friend. Suddenly the vagueness in the law does not seem to be a formidable problem, but, rather, a virtue. 

In general, a conflict of interest in politics or business need not involve a financial relationship between the decision-maker and the other person.  The problem with sidestepping votes to avoid any conflict of interest is that too many votes may be missed. Moreover, evading votes when an official might be tempted to vote in line with his or her more particular interest can be interpreted as giving up on the civic duty to vote in line with the public good; it is assumed that if there is a personal interest involved, the official will act on it rather than the good of the city. In other words, the Nevada law essentially punts by separating a voting official from conditions in which voting in the public interest would be felt as a duty (there being an opposing motive in line with the official’s own interest extended out to business associates, relatives and friends.

As for the Nevada ethics law, that its vagueness somehow “chills speech” is perplexing. The same kind of conflation seems to take place when spending money is reckoned as political speech. The court seems to have been assuming that the vagueness would mean that officials would be skipping many votes, and therefore “silenced” by the law.  Even if the law is too broad in its coverage, to consider voting as “speech” is patently absurd.  To vote is not to speak.  To claim that one is proffering his opinion by voting magnifies a side-effect out of what it means to vote. A vote takes place after the give and take of opinions in order to settle the question.  Hence, “the vote is on the question” rather than being an elaboration of the question.  A vote is a collective decision rather than a dialogue.  We are therefore back to the problem of whether too many votes would be skipped.

At some point, if the duty of civic virtue is trampled upon, no law can bracket the corruption.  In the end, it is up to the popular sovereign, the people, to evaluate their elected officials with respect to the voting records. As for the officials, skipping a vote to avoid a conflict of interest must be weighed against the duty to vote.  From the standpoint of the latter, a skipped vote is a failure, even if it is to obviate a hard choice. Ideally, public officials would stand up to their particular relations and explain to them that the public trust is bigger than them and the relations. Yet if the official foresees himself succumbing to the temptation of expediency, skipping a vote would be worth evading the duty.


Source:

Joan Biskupic, “Nev. Official’s Vote Turns Free-Speech Case,” USA Today, April 18, 2011, p. 6A.