One Commissioner, Two Conflicts, and No Ethics Program in Moore County, NC

Anonymous

Tue, 01/04/2011 - 02:25

County Related

One Moore County (NC) commissioner has been faced with two conflict of
interest matters in 2010, one of which led him to recently resign
from a board. Although the two have nothing to do with each other, they
have become politically intertwined which, along with the lack of an ethics program, has prevented the
responsible handling of the conflicts.

Sitting on the Board of an Organization Funded by the County 
According to <a href="http://www.thepilot.com/news/2011/jan/02/caddell-to-step-down-from-scc-…; target="”_blank”">an
article
in yesterday's Pilot</a>, the county commissioner resigned from
the board of the local community college, effective next June 1, due to
the appearance of a conflict, since the college is partially funded by
the county. This would appear to be an unnecessary resignation, since
the commissioner could withdraw from participation in any matter that
came before his commission involving the college. This would normally
involve only the size of the county's annual funding of the college. 
 
The article notes that it is legal for a commissioner to sit on a
community college board, and that in fact the state statute encourages
such participation. The chair of the college board explained that the
reason for this encouragement is that community colleges provide most
of the workforce training in North Carolina, and that commissioners and
other legislators "understand the mission." This is not a very good
argument, because even if it were true that commissioners and
legislators have a special understanding of workforce training, that
understanding could be just as useful if a former
commissioner or legislator were placed on each community college board. 
 
The commissioner says that he resigned from the college board because
he didn't want the political debate to hurt the college, and that he
wanted to do it "on my own terms." But if he believed the conflict was
serious enough to merit resignation, to protect the college, why wasn't
his resignation effective immediately? It's not as if he is necessary
to the board's functioning. 
 
Having a No-Bid Contract with the County 
The reason all of this rings a bit false is that the resignation has
little to do with this conflict. There is another, more important
conflict, as well as an important project that has led the commissioner
to this excessive handling of his community college conflict. 
 
The other conflict is an odd one. According to <a href="http://www.thepilot.com/news/2010/dec/31/caddell-public-service-way-giv…; target="”_blank”">an
article
in the Pilot last week</a>, the commissioner is the CEO of a
software company that supplies law enforcement offices across the state and
in other states. Since it would not have been acceptable to sell the
software to the county sheriff's office, the company gave it to the
county. But the county has a maintenance agreement that pays the
company $24,000 a year. 
 
According to <a href="http://www.thepilot.com/news/2010/jul/04/software-conflict-becomes-an-i…; target="”_blank”">a
July
article in the Pilot </a>, the state has an unusual law that allows
local governments to do business with a company in which an elected
official has a direct financial benefit if the value of the contract
does not exceed $25,000 and if the population of any town in the county
does not exceed 15,000. Last year, the maximum value was raised to
$40,000. Frayda Bluestein, a professor of government at UNC and one of the authors of the wonderful <a href="//sogweb.sog.unc.edu/blogs/localgovt/" target="”_blank”">Coates' Canons local government blog</a>, told the
reporter that "the exemption in the law is intended to help small areas
where there may be limited access to certain services." 
 
That is not the case here. The software company is not a local
provider, but a national provider that happens to be based locally. And
although each annual contract is under the limit, it is apparently
unbiddable, since the maintenance is of the company's software. 
 
It appears that the deal as a whole is good for the county, but that is
not the only consideration. Also important is how it appears to the
public. What the commissioner has said is not helping that
appearance: "I would just as soon give it away. It is not about
the money. We made it $24,002 (the contract). We aren't anywhere near
the maximum allowed. Moore County is our home. We wanted to have our
own county [as a customer]. That was important to us." 
 
If he'd just as soon give it away, why does he charge $24,000 a year
for the maintenance contract? And why should it matter to the public
that he wants his county as a customer? When you put this feeling
another way — he doesn't want a competitor in his own backyard — it
doesn't look so good. 
 
The chair of the board of commissioners feels that the commissioner
wants the contract so that he has a local place to showcase his
product. If the software company does take its clients over to the
sheriff's office, then this might actually be an issue, because it
would provide a clear benefit to the company in addition to the
maintenance contract. It would even mean that the gift of the software
(which, of course, costs the company nothing) was not really a gift at
all, but a valuable investment. 
 
The Real Issue 
It is this possibility that ties these two conflict situations into
what this whole controversy is all about: the building of a new
jail and sheriff's office. The software CEO is a proponent of this new
building, and one of the arguments being made by those who oppose it is
that a spanking new sheriff's office will be a far better showcase for
the software company to display its wares. 
 
What is interesting is that the commissioner chose not to stop charging
the county for software maintenance, which would have dealt with the
more serious of the two conflicts, and instead went overboard on the
more minor conflict, his seat on the community college board. It's good
that he didn't want the college to be tangled in the fight over the new
jail, but this could have been accomplished by agreeing to vote
separately on the college's budget item, with the commissioner recusing
himself. 
 
The County Attorney as Ethics Adviser and Ethics Code Drafter 
It also doesn't help that the only person providing ethics advice
relating to these matters has been the county attorney, whose comments
are limited strictly to the law. She says that the dealings between the
county and the software company are perfectly legal, but says nothing
about the appearance of impropriety or the issue of using the sheriff's
office as a showcase. 
 
This same county attorney wrote the county ethics code (attached; see
below), really a code of conduct for the county commission, with references to state ethics laws. The ethics code was passed in November. Her code refers to ethics provisions as
"minimum standards," and there is a provision which refers to
appearances of impropriety:<ul>

Although opinions may vary about what behavior is inappropriate, this
board will consider impropriety in terms of whether a reasonable person
who is aware of all of the relevant facts and circumstances surrounding
the board member's action would conclude that the action was
inappropriate.</ul>

When there is a question about impropriety, board members are
told to discuss the matter with the county attorney. And yet the county
attorney talks in terms of laws rather than the appearance of
impropriety. This is a problem, a common problem. Attorneys are not
good at giving advice that goes beyond what is legal and what is not,
and that's not what government ethics is about. 
 
Politicizing the Ethics Process 
The final issue in this matter arose at the meeting where the county
commission approved the ethics code. Its chair wanted to make three
last-second amendments, all of which pointed directly at the software
CEO, community college board member, and supporter of purchasing
certain property for the new county jail (and, to a lesser extent, his
former partner and still chairman of the board of the software company,
who is also a member of the county commission). 
 
The proposed amendments were as follows:<ul>
A prohibition against a commissioner from serving on any panel whose
budget is overseen by the county board 
Restrictions involving the competitive bidding of equipment or software 
A prohibition against the county's purchase of land at a price exceeding
appraised value</ul>

Recognizing That There Is No Ethics Program 
Once again, it is clear that the debate over ethics issues in Moore
County is really a debate between two factions on the commission, and
that the principal issue is not the community college or even the
software contract, but the new jail. There appears to be no one in the
county government who is willing to acknowledge that, although there is
a new ethics code, the county has no ethics program (part of the problem is the terrible state ethics code requirement passed in 2009; see <a href="http://www.cityethics.org/node/808" target="”_blank”">my blog post on it</a>). The entire program
sits on the shoulders of the county attorney, who speaks only of the
law. There is no training program, no independent adviser or enforcer,
and no disclosure. The guidelines are not clear, and the entire process
is politicized. 
 
The Pilot editors, at least, recognize aspects of the problem. But
someone needs to look around at the rest of the world, and recognize
that the new ethics code is primarily a code of conduct for the county
commission, and nothing more, and that neither the county commissioners
nor the county attorney seem to understand what a government ethics
program is or why ethics should not be politicized. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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One Commissioner, Two Conflicts, and No Ethics Program in Moore County, NC

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