Conflicts and Conundrums
To disclose or not to disclose, that is the question
February 16, 1979
The only thing transparent about conflicts of interest in Springfield's local politics is the attempts by office-holders to avoid admitting to them. I am less certain now than I was then that full disclosure would have made improved Springfield government decision-making, but at least we would have known a little more about why it was so wayward.
In a recent piece detailing the property holdings of Springfield streets commissioner Frank Madonia, the Springfield "State Journal-Register's" Political columnist Al Manning reminded us that elected city officials are not required by state law to disclose such holdings. Madonia's, for instance, saw the light of day only because he revealed them voluntarily when he began his campaign for mayor. Madonia favors an ordinance requiring by law what in his case was required by political prudence; so does Mike Houston, his opponent in the April city election.
The point of such an ordinance would be to eliminate or reduce certain kinds of conflicts of interests among elected municipal officials. Says Manning by way of illustration: "Under the present law, the public doesn't really know if a commissioner might have a financial interest in property which is being re-zoned." Madonia has quite properly abstained in the past when his property came before the council for zoning. But is that enough? For example, it is perfectly conceivable that a fellow commissioner eager for Madonia's support on the council might choose to cultivate Madonia by giving him a sympathetic vote on such zoning matters. The distorting effect on the conduct of the city's business would be the same whether the biased vote was cast by Madonia or by his hopeful ally.
Simple abstention, in short, may be sufficient to observe the political niceties arising from conflicts between an official's public and private business, but it is insufficient to cover the legal ones. Three years ago, for example, the state attorney general advised that under Illinois' Corrupt Practices Act it is illegal for a school board to act on a contract with a teacher who is married to one of the board's members, even if the board member in question doesn't vote on the contract. If the principle embodied in that law applied to Springfield's city council, any action such as zoning changes pertaining to the property of its members would be illegal even if the owner/member abstained. The only solution to the conundrum would be to require that council members divest themselves of all property holdings, including their own homes.
Unreasonable? Certainly, but not far-fetched. Property is by its nature compromising. Consider as an example the lingering controversy in Springfield over the development of a southwest side street plan. For months the city council has been trying to devise a road network that will reconcile the conflicting interests of developers, residents, and traffic engineers in that fast-growing corner of the capital city.
Of the five men who voted on the matter, three—commissioners Henneberry Madonia and Ward--—live within the area affected. They are interested parties by every possible definition. During a council meeting in 1977 at which the council considered whether to amend an ordinance closing a street in the neighborhood to through commercial traffic, Commissioner Ward noted jokingly that his wife was "one of the cheerleaders" who'd crowded into the council chambers to argue against the amendment. The audience laughed, and Ward voted anyway, in favor of his wife and her friends.
More recently, Commissioner Jim Henneberry held up delivery of the council's street plan for the area until Madonia agreed to an amendment barring a future direct connection between that same street. Iles Avenue, and a large commercial, development planned to be built nearby. Henneberry argued that such a direct connection would encourage shoppers to drive on lies, changing it from a residential to a commercial avenue. Henneberry lives on that stretch of Iles.
This fuzzing of public service and private interest is not new in Springfield. Indeed, a great many residents assume that commissioners (who are elected at large) always tend to favor their own neighborhoods. Last year the Citizens for Representative Government argued against retention of the commission form of government on just those grounds. That it survives as an issue in even the current city election campaigns is suggest by Henneberry's ads, which stress his concern "for all Springfield."
Illinois has laws on the books proscribing conflicts of interest among local officials, but they are ambiguous and difficult to enforce. The problem is that no one, least of all the people who presume to know, knows exactly at which point an elected official must absent himself from decision-making to avoid a conflict of interest. This is partly because no one has yet specified precisely what "interest" means. The word is most commonly taken to mean financial interest (it is one of the pruderies of the middle-class reformer that he construes greed for money as the only lust that might interfere with the proper discharge of one's public duty) but that definition raises more questions than it answers.
For example, in a discussion of a landmark ethics case, People V. Shoresman, that appeared in "Illinois Issues' magazine, Paul Thurston noted that under the law as interpreted in that case, board member has a conflict of interest when he votes on a teacher salary schedule if he is married to one of the teachers affected by that schedule. This is true even though such schedules are typically the result of negotiations involving many people and reflect certain accepted standards for compensation such as years of schooling and teaching experience, and cannot reasonably be said to have been manipulated by a single board member for the benefit of his spouse.
The conflict is real enough, but the interest is impossibly remote. Using this standard, concludes Thurston, "It is difficult to understand how a property-owning board member who votes against taking a tax referendum to the public . . . is not in a conflict of interest for saving himself money on his tax bill." It has been proposed that the General Assembly define exactly what constitutes a disqualifying financial interest. But that is a task for a philosopher, not a prince. Defining precisely when an official becomes corruptible is as daunting (and perhaps ultimately as frivolous) as defining precisely when a fetus acquires a soul.
Some of the more zealous ethics crusaders have suggested that, say, a farmer who also sits in the General Assembly should be made to exempt himself from voting on legislation affecting farming. One might just as easily disqualify female legislators from voting on ERA by virtue of their sex. In any event, it can be argued in response that a farmer is qualified to vote on farm matters precisely because of his interest, since his decision would be informed by a deeper understanding of the issues than is usual among our dilettantish lawmakers. Clearly, so rigorous a standard would prevent any public business from being done at all unless one opted for a system in which, as some have said, the only people who can hold public office are those who own nothing, know nothing and earn nothing.
As Thurston noted in Illinois Issues, "There is much confusion as to what is legal public service and what is conflict of interest." Conflicts of interest become ethical issues only in certain cases, making their definition a matter of politics rather than principle—though often they are masked in principle. Some observers have suggested stiffer disclosure laws for public officials that would force them to make their interests public. Thus informed, the theory goes, the voters would decide whether an official's conduct was an unpardonable breach of trust and, if so, turn the rascal out at the soonest opportunity. The people would be the arbiter of public conduct, in other words, instead of the courts.
Whether one thinks conflict of interest should be a political offense or a criminal one depends, I suppose, on whether one has placed more faith in the voters of the legal system. Obviously, it will not do to have lawmakers who are venal or corrupt. But it is true (and here I must resort to a cliché) that one cannot legislate ethics. This is true not just because laws cannot compel people to be honest—they usually only compel them to be careful—but because it is a hopeless proposition philosophically. ●
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