Opinion: Conflict of interest — you are the judge


In an excellent Daily Camera article entitled, “Boulder mayor: Financial disclosure, conflict-of-interest rules need review” (June 13, 2012), Mayor Matt Appelbaum said, “It’s really important that people see the council as transparent and that they see us as transparent because we are.” I certainly support Matt’s goal, but the current rules need a whole rewrite, not just a look-over.
For example, suppose a Boulder council member said, “I think that the legislation before us would be great for Boulder, but my business will likely be hurt by it.” Most people would say that this council member has a fundamental conflict of interest and probably should not be voting on the matter. But under Boulder’s current laws, assuming that the business is not unique, this would not even be called a conflict of interest, and the council member could participate in discussions and vote.
Governments have conflict of interest laws to provide the citizens some measure of assurance that their officials are operating in the citizens’ best interest, and not making self-serving decisions. Because public officials’ decisions affect many people’s lives, the standard arguably should be tougher than in private circumstances. In the past, Boulder council members have generally recused themselves even if they weren’t required to. But given recent events, it’s time to carefully inspect the law and make a number of significant improvements.
None of us can know for certain what goes on in someone else’s mind, so the test for a conflict must be based on appearances — what the situation looks like. Thus, “conflict of interest” can be defined as a situation in which a reasonable person would think that the official’s financial or other personal considerations have the potential to compromise or bias his or her judgment or objectivity.
Of course, this test requires that the “reasonable person” actually knows what the official’s “considerations” are. But, apparently, Boulder’s laws do not guarantee public disclosure of potential conflicts of interest up front, so citizens and other council members may not be aware of possible sources of bias or compromised objectivity.
We would not want the mere existence of personal considerations to exclude public officials from voting, because many times there would be no one left to make decisions. After all, most of what local government does affects each of us in some way, large or small. So there needs to be some way to distinguish conflicts of interest that should exclude an official from voting from conflicts that shouldn’t.
This is where another major flaw in Boulder’s law shows up — any member of an affected “class” is automatically determined to not have a conflict on a legislative vote, irrespective of whether the class is large or small. Take, for example, voting on water rates. Everyone pays them, directly or indirectly, so everyone has a financial interest. But there is a big difference between the very large class of ordinary homeowners and renters, for whom water is generally not a major cost, and the very small class of owners and executives of the few industries paying very substantial amounts because their businesses use large amounts of water.
It is probably impossible to come up with the perfect bright line to say how big a class needs to be to make the conflict acceptable and allow the official to vote. But one key is to require open disclosure of all potential conflicts by each council member, so that everyone can at least be fully informed.
However, under current Boulder law, this public disclosure may not happen, because a council member can go privately to the city attorney and get a confidential (and inaccurately named) “advisory opinion” that essentially immunizes that council member from prosecution over their conflict. This is crazy — the city attorney is hired, and potentially fired, by the council, and thus has a huge built-in conflict that could easily produce biased judgments.
I’ve only discussed a few of many issues. But it should be obvious that Boulder’s conflict of interest and disclosure laws needs some serious rewriting so that they require real openness, match how ordinary citizens perceive conflict situations, and finally put some force behind the code’s fundamental prohibition against the “use of public office or position for financial gain.” This is a worthy job for this council, so let’s see some action.


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