Statement on Ethics and Conflict of Interest

Below is the text of a statement I delivered last night as part of "Council Member Statements" on the topic of ethics and conflict of interest. The statement set off a mini-controversy as Mr. Bain and Mr. B. Tower took offense to some of my remarks (especially the paragraph beginning with "Imagine if . . ."). Here's the statement:

At the April 10th Council meeting, Burk Tower and Bryan Bain voted "present" on two issues because they claimed that their employment at UW Oshkosh presented a potential conflict. One issue dealt with approving university run parking meters, the other was the hotel-motel room tax increase. Apparently the hotel-motel tax presented a potential conflict because monies raised from the tax might be used someday for assisting in the remodeling of Titan Stadium.I am employed at UW Oshkosh, and had I been on the Council on April 10 I would have voted on the parking meters and the hotel-motel room tax. Let me explain why:

The key state statutes relating to conflicts of interest for elected officials can be found in chapter 19. As summarized by the League of Wisconsin Municipalities, chapter 19 prohibits the following conduct:

1. Use of Office for Private Gain. Public officials are prohibited from using their offices to obtain financial gain or anything of substantial value for the private benefit of themselves, their immediate families, or organizations with which they are associated.
2. Offering or Receiving Anything of Value. No person may give and no public official may receive "anything of value" if it could reasonably be expected to influence the local public official's vote, official action or judgment, or could reasonably be considered as a reward for any official action or inaction.
3. Taking Action Affecting a Matter in Which Official Has Financial Interest. Local officials may not take official action substantially affecting a matter in which the official, an immediate family member, or an organization with which the official is associated has a substantial financial interest. Nor may an official use his or her office in a way that produces or assists in the production of a substantial benefit for the official, immediate family member or organization with which the official is associated.

For someone who does not bother to read state law, “associated with an organization” sounds almost the same as “employed by an organization.” But statute 19.42(2) says that "'Associated', when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent." Curt Wytinski, legal counsel for The League of Wisconsin Municipalities, says that "An individual is not associated with an organization merely because the individual is a member or employee of an organization or business."

Neither I nor any member of my immediate family serve in any director role at UW Oshkosh. Neither I nor any member of my immediate family are UW Oshkosh officers or trustees. Neither I nor any member of my immediate family own or control, directly or indirectly, any outstanding equity in UW Oshkosh.

Now I completely understand the argument that elected officials should be concerned about the appearance of conflict as much as actual conflicts. I have said in the past and believe today that elected officials should act according to the highest ethical standards.

But for me personally—Mr. Tower and Mr. Bain obviously have to make their own judgments—for me personally to say that I am not going to vote on parking meters, or a hotel – motel tax increase, or a potential condominium development supported by some university administrators – to say I am not going to vote on these matters because I am employed by UW Oshkosh would provide the appearance of being ethical while releasing me from the pressure to make what are sometimes tough votes. And in fact it is in tough votes that a councilor most shows his or her ethical fiber.

Imagine if I voted for a Leach band shell bathroom bid waiving scheme that was hatched on the golf course by a city councilor and his construction company ceo buddy. Imagine if I voted to place a pier in Miller’s Bay only 24 hours after it passed the Parks Board with limited discussion. Imagine if I went into a secret meeting regarding the Five Rivers Resort proposal in spite of receiving credible warnings from citizens that the meeting was unnecessary, inappropriate, and probably illegal. Imagine voting for or supporting all of that, but then turn around and say to you that as a university employee I’m not going to vote on university parking meters because I’m concerned with ethics. You would rightly say that my non-vote on the university matters provides the appearance of ethical behavior while my votes on bid waiving, pier placement, and secret meetings suggest an individual who is ethically challenged.

All elected officials sometimes face votes that present an actual conflict of interest or at least the appearance of conflict. When conflict occasions arise, elected officials owe the citizens an explanation of why they choose to vote or not vote. Simply saying, “because the university is my employer” does not cut it as an explanation and, worse, creates the inaccurate impression that employment by the university is by itself enough to force a vote of “present.”

There may be times when I, like every other member of the Council up here, will come to the conclusion that even though it is legal for me to vote on a matter, the appearance of conflict is great enough that I will decide to vote “present.” If and when such situations arise, I will try as best I can to explain the reasons for my non-vote.