"Interest" vs. "Benefit"
In my <a href="http://www.cityethics.org/content/fishing-conflicts" target="”_blank”">most
recent
blog post</a>, I pointed out how vague the concept of an "interest" is
for most people. I would
like to discuss this problem further, because I think it is the cause
of much misunderstanding, as well as weaknesses in ethics code drafting.<br>
<br>
Ethics codes are essentially conflict of interest codes. But the idea of an "interest," not to mention how they conflict, is not very concrete and, therefore, confusing to many people.<br>
<br>
Think about the interests that are in conflict. One is the public
interest, which is very abstract, and yet is so important that it is
the basis
for representative democracy. The other interest is the personal or
financial interest of each government official or employee. These
interests are usually, although not always, concrete, but they are not
always certain (a council member may hate the sister whose contract is
before the council) and they are rarely important to anyone other than
the official or employee. In other words, these "interests" are apples and oranges.<br>
<br>
And yet it is very typical for an ethics code's principal provision to
read, "No person subject to this code shall have any interest,
financial or otherwise, which is in substantial conflict with the
proper discharge of his or her public duties or employment."<br>
<br>
There is nothing in this sort of provision to hang your hat on. It
provides little guidance and it is difficult to enforce in many
circumstances.<br>
<br>
Just because ethics codes involve conflicts of interest doesn't mean
that they have to use the <i>language</i> of interests. There is an
alternative approach: the language of <i>benefits</i>.<br>
<br>
Here is the City Ethics Model Code's principal <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC32…; target="”_blank”">conflict of interest
provision</a>:<br>
<ul>
An official or employee may not use his or her official position or
office, or take or fail to take any action, or influence others to take
or fail to take any action, in a manner which he or she knows, or has
reason to believe, may result in a personal or financial benefit, not
shared with a substantial segment of the city's population, for any of
the following persons or entities...<br>
</ul>
The big advantage "benefit" has over "interest" is that when ordinary
people think about unethical behavior in government, they think of
people unfairly benefiting. For example, in the current Atlanta matter
<a href="http://www.cityethics.org/content/making-gray-area-black-and-white" target="”_blank”">I recently discussed</a>, there is a question about a council member's
interest in his brother's job with the city. No one is concerned with
this "interest." They are concerned that the council member wants to
benefit his brother. No one but lawyers thinks in terms of "interests."<br>
<br>
Another advantage of "benefit" is that it's both a noun and a verb (see
the previous paragraph for two examples of its use as a verb).<br>
<br>
Another advantage of "benefit" is that using this term makes it clear
why gifts are conflicts of interest. In fact, many ethics codes use the
term "benefit" instead of "gift." The word "benefit" gives an ethics
code more integrity, in the wholeness sense, than the word "interest" because it can be used throughout the code and never seems forced or legalistic.<br>
<br>
Another advantage of the "benefit" approach is that it provides a very
simple solution to the problem that arose in <a href="http://www.cityethics.org/content/making-gray-area-black-and-white" target="”_blank”">the Atlanta matter</a>, where
the council member's interest wasn't clear because no one knew what
would happen to his brother's job. As the City Ethics Model Code
conflict provision shows, using the language of "benefit" makes it easy
to say "may" result in a benefit, which would cover the Atlanta
uncertainty, providing better guidance and preventing unnecessary controversy.<br>
<br>
I can't take credit for inventing this alternative approach. I borrowed
it from <a href="http://www.nysba.org/Content/NavigationMenu18/EthicsforMunicipalLawyers…; target="”_blank”">the
model written by Mark Davies</a>, executive director of the Conflicts of Interest Board
of the City of New York and former executive director of the
New York State Temporary State Commission on Local Government Ethics, as well as a professor at Fordham Law School.<br>
<br>
However, of the nation's 25 largest cities, only 2 of them — <a href="http://hr.ci.columbus.oh.us/PDF/PoliciesForms/PO18%20Ethics%20Policy.pd…; target="”_blank”">Columbus</a>
and <a href="http://ethics.lacity.org/PDF/law_geo.pdf" target="”_blank”">Los Angeles</a> — primarily employ the "benefit" approach. Another 6
cities — D.C., Houston, Milwaukee, Philadelphia, San Antonio, Seattle —
take a mixed approach.<br>
<br>
The lawyers who write ethics codes should weigh the advantages and
disadvantages of using the "benefit" or "interest" approaches to
conflicts. Just because lawyers think in terms of "interests," because
there is that central term "conflicts of interest," and because
"interest" is currently the majority approach, doesn't mean it's the
best way to provide guidelines to ordinary officials and employees, or
to get the public and the press to best understand government ethics.
Nor does this mean that it's the best way to create an ethics code that
is structurally and linguistically consistent, or most easily enforceable.<br>
<br>
It is common for anyone to copy what they see in the ethics codes
around them. But this is the one aspect of most ethics codes that, I
believe, has most made government ethics difficult to understand. We
can't afford to have government ethics be harder to understand than it
needs to be.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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