The Role of Motive in Government Ethics

A conflict situation in my state of Connecticut is instructive
regarding a basic concept of government ethics, as well as a basic
concept of legislative immunity.<br>
<br>
Legislators insist that they require immunity because their motives
in making decisions cannot be questioned outside their body. Government ethics, on the
other hand, does not consider motive, only conduct and relationships. This is one of
the principal reasons why I argue that legislative immunity does not
protect legislators from government ethics enforcement.<br>
<br>
But when the talk is not about legislative immunity, it turns out to be perfectly okay to discuss a legislator's motives, as well as others' motives.<br>
<br>
<b>Background</b><br>
According to <a href="http://www.courant.com/news/politics/hc-lender-political-conflict-0504-…; target="”_blank”">a
Jon Lender column in the Hartford <i>Courant </i>this weekend</a>,
(Disclosure: the <i>Courant</i> occasionally hires me to write
op-ed columns on government ethics issues), the state's house
minority leader made a strenuous argument against a bill requiring
increased financial disclosures by for-profit nursing homes. His law
firm lobbies for the Connecticut Association of Health Care
Facilities, which opposed this bill.<br>
<br>

The minority leader said that, due to his and his law firm's past disclosures, his employment
situation and the lobbying relationships are matters of public
record. He also said that he had, in the past, obtained general advice from the office of
state ethics, which said that he could participate in matters involving
lobbying clients of his law firm (he does not lobby for the firm
himself, but as a partner he shares in the firm's profits). In other
words, his participation regarding the nursing home bill was perfectly legal. He was not required to say
at the time of his participation in the matter that his law firm was
working to oppose the bill as an agent of firms who would benefit by its failure to pass.<br>
<br>
But government ethics does not involve only what is legally
required. <br>
<br>
<b>The Minority Leader Defends His Motives</b><br>
In fact, when the conflict situation was pointed out by a labor
leader, the minority leader pointed out that, once, he got a bill shelved
even though, he later discovered, his law firm was representing a
client in support of the bill. He considered this evidence that his
firm's representation of clients had no effect on the positions he
takes. That is, he had no motive to help clients who put money in
his own pockets.<br>
<br>
Although the law says nothing about motive and the motive of a
legislator may not be questioned outside the legislature, the
minority leader spoke in terms of his motive. In fact, he also spoke
in terms of the motives of the labor leader who pointed out his
conflict situation. He said that the labor union was disguising its
motive for supporting the bill. He said that the union's true motive
was "'for the use of unions' to obtain heretofore-unavailable
financial information about nursing homes and the businesses they
deal with."<br>
<br>
<b>Appearance, Not Motive</b><br>
Both the minority leader's statements that he has no motive to help
clients of his law firm and that the labor union had an ulterior
motive in supporting the nursing home bill may very well be true.
But there is no way for the public to know this. This is why
government ethics laws (at least those that follow best practices)
do not bother about motive. If you are a government official whose
business may benefit from a matter, you are conflicted and should
withdraw from participation. It's not a matter of your motive, it's
a matter of how your conduct appears to the public.<br>
<br>
As for a union leader, he is not a government official and,
therefore, may be subject to government ethics law only under lobbying
regulations. He has the right to point out conflict situations
and, even when there is no legal violation, point out the problems
of an official with such a conflict participating in a matter,
especially without specifically disclosing the conflict at the time
of his participation.<br>
<br>
<b>Problematic Participation</b><br>
If he were to file an ethics complaint, any
statement about the legislator's motive should be considered
irrelevant. But the fact that his law firm — and the legislator as a
member of the firm — benefits financially from lobbying for a client
seeking to stop a bill from becoming law, is something that is
relevant and, even if not illegal in Connecticut, problematic for
the public's trust in the legislature to do what is best for
citizens of the state. The fact that this particular legislator has a huge
influence in the legislature (in this instance, all members of his party voted
with him, apparently, to the public, because he successfully swayed
them) makes the minority leader's participation and failure to
specifically disclose especially problematic.<br>
<br>
Everyone needs to understand that government ethics is not about
motive, but about conduct that creates an appearance of impropriety.
There is no reason to question motives or to defend motives, either.
What officials must do is disclose their conflicts. Even if they
are not legally required to, they should also withdraw from participation where they
have a conflict that creates an appearance that they are acting for
their personal benefit or for that of a client or business associate,
even if they are certain that they are not. Their actual motive is
irrelevant. That is hard to accept, but it will prevent situations
damaging to the public trust, such as this one.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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