Wednesday, May 20, 2009

State v. Indianapolis Ethics Rules; Removal of Right to Abstain

On Monday night the counsel passed an ethics proposal that is supposed to provide comprehensive guidance to Indianapolis City-County councilors.

Having done some work with the state "participation rule" I note with interest that the ethics measure, Proposal 149,2009, identifies a “conflict of interest” as when a matter before the council would bestow a benefit of $1,000 or more on the councilor or a member of the councilor’s family. While this is a reduction from the $5,000 figure originally proposed, it stands in sharp contrast with the state participation statutory rule, IC 4-2-6-9, which does not have a monetary threshold for someone participating in a decision in which that person has a financial interest.

The provision I found the most interesting was a sleeper provision contained within the section dealing with when a counselor faces an "appearance of conflict" as opposed to the more tangible conflict rule mentioned above. The council ethics proposal defines an “appearance of conflict” of interest and gives the councilor the option to abstain from voting in such cases. Interestingly, if the abstention prevents the Council from deciding the issue, a majority of the council can vote to compel the councilor to vote anyway. Language which previously required that the presiding officer let the councilor abstain from voting in such circumstances was eliminated from the ethics code.

One has to wonder why members of the council thought that a counselor should be forced to vote against his or her ethical beliefs regarding the need to abstain from a vote. To give a possible example when that might come into play, let's take the situation involving Councilor Ryan Vaughn. Vaughn is an attorney at Barnes & Thornburg which represents the Simon brothers who own the Pacers. His boss at the law firm is Capital Improvement Board President and B&T managing partner, Bob Grand. What happens when Ryan Vaughn is asked to cast politically unpopular votes to raise taxes in order to bail out the Board run by his boss and give the Pacers, owned by his firm's clients, $15 million more per year?

While it could be argued that Ryan Vaughn does not have a direct conflict interest, it would be hard to argue with a straight face that Vaughn does not have a clear "appearance of a conflict." Under the old rules, Vaughn could request that he be recused from the vote by asserting the ethics rule. Now, under the revised ethics code, Vaughn can be forced to vote on the tax issue if his vote is needed to break the tie to raise taxes in Indianapolis. That's probably not a vote Vaughn would want to be forced to cast, especially in light of his desire to fill a vacancy in the Indiana Senate.


Gary R. Welsh said...

Are you sure that's not been a rule before, Paul. It seemed like this came up when Ike Randolph tried to recuse himself from a vote that impacted the fire department and Monroe Gray and the Democrats refused to grant him the right to abstain, citing past practices.

jabberdoodle said...

The previous rule said that the President, or person presiding over the meeting, must allow any request to abstain. Gray did not comply with the rule properly. Also, Randolph did not cast a vote anyway, defying Gray's decision.

It sounds like the Council has adopted rules that are in immediate need of revision. It isn't asking much of them to refrain from all votes that are a conflict of interest - even a penny. A progressive Council would also require abstention in the face of an appearance of a conflict. The public confidence is at stake and it should not be the aim of rules to smooth the way for Councillors.