Sunday, March 25, 2012

New law takes wrong approach to conflicts of interest

Previously published in the Terre Haute Tribune-Star, 3/25/2012

The new Indiana conflict-of-interest law, as described in last Sunday’s Tribune-Star editorial, “prohibits employees of local government units from serving as elected officials on the councils that oversee those units. The bill also forbids local government officeholders from directly supervising relatives.” There is no question legislation is needed here, but this law simultaneously goes too far and not nearly far enough.

At a time when it seems finding good people to run for any kind of office is getting harder and harder and legislature after legislature, beginning with Indiana, passes legislation making it harder for people to exercise their right to vote (funny how Second Amendment rights are so eagerly defended by politicians but not voting rights — the fundamental democratic right), we enact a law that requires entire classes of people, based on their employer, to give up their livelihood if they wish to serve their local community as elected officials.

Why is a fireman or police officer serving on the city or county council a worse conflict of interest than a local business owner influencing tax abatements, zoning, or infrastructure improvements that benefit their personal interests? A conflict of interest is a conflict of interest.

All laws are enacted in a context. The same governor who ended collective bargaining for state employees, who enthusiastically supported legislation to limit the collective bargaining rights of teachers, and who just signed into law “right-to-work” shares his unacceptable vision of a conflict of interest: “The conflict of interest when double-dipping government workers simultaneously sit on city or county councils, interrogating their own supervisors and deciding their own salaries, must end.”

And so the Indiana law creates an effective ban on public-minded public employees from serving their communities as elected officials. But why not other, just as egregious conflicts of interest, like a real estate broker serving and pushing through local legislation that clears the way for housing where that broker is the exclusive broker; or a contractor who has contracts with the city or county? Why is the animating horror of conflict of interest an employee “interrogating” his or her own supervisor? If it were not an employee in this situation, but a real estate developer, would this be interrogating or negotiating? And ending negotiations between employees and employers seems a recurrent theme in many Republican-controlled states right now.

The law doesn’t go far enough because a public employee’s spouse is not banned from serving. That, too, is a conflict of interest and the logic of this law, if it were extended, would require the elected official to divorce their public employee spouse before taking office. Why is the spouse of a firefighter or police officer “interrogating” their spouse’s supervisor not a conflict of interest?

A superior law would be one where dual roles are identified (if an elected official stands to personally (financially) gain from a policy they are about to make because of another role they play in life, they should be barred from making that policy. This would include spouses and immediate family members). A mechanism must be in place that if a particular individual refused to recuse themselves from hearings and voting, to force recusal upon them. Conflicts of interest are fairly easy to identify, at least the most obvious ones, and once a good law is in place, norms of practice emerge, and conflicts of interest will be reduced.

Conflicts of interest are also about undue influence. Gov. Daniels apparently sees it only as a problem when an employee is “interrogating” a supervisor or double-dipping, but a supervisor can place undue influence on an employee, too, to vote for and support certain policies. But when a viewpoint privileges one side of the employment relationship and diminishes the other, those concerns fade into the background.

Hence, this is a bad law and likely will not reduce the conflicts in the long run, because it is construed too narrowly, conceiving of conflicts as only a problem with public sector employees and not citizens in general. The law doesn’t define conflicts of interest, it only offers a draconian remedy for those with conflicts that the current Republican view cannot tolerate. It does not address conflict of interest as a serious problem per se.

Rather than bar otherwise good people from serving their local communities, bar all elected officials from making policy and voting in areas where they have a conflict of interest.
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