Timing is Everything

Thirty-one years of government service has taught me that public servants are committed to serving the greater good–with only a few exceptions. Yet, those few exceptions can fuel public cynicism that detracts from local governments being able to effectively serve their constituents. We local government officers need to conduct ourselves so that no bad inferences could be drawn from even a potential conflict of interest. Such bad inferences can taint the public’s respect of our good decisions.

South Dakota law identifies a “conflict of interest” by prohibiting local officers from being financially interested in certain actions. See SDCL chapters 6-1 (Acts and Records of Local Officers) and 3-16 (Malfeasance, Misfeasance, and Nonfeasance in office). In a broad sense, a government decision-maker should not be in a position to directly or indirectly gain financially from their government position in a way that would be unique or different from any other member of the general public. While certain exceptions to these statutes account for a scarcity of goods or services in a particular locale, please do not assume that you can identify whether an exception applies without the advice of counsel.

Ethical principles are not specifically codified in state law. Several of our local governments have adopted the rule that public officials should “avoid even the appearance of impropriety.” An appearance of impropriety is naturally in the eye of the beholder. What may seem innocent to some could be perceived as sinister by others. The inquiry is situation-specific. Questions on potential conflicts of interest for local government decision-makers arise regularly across South Dakota, but not necessarily for the reasons asserted by some of the cynics. These questions frequently arise because the local government decision makers are among the most active people in their communities and South Dakota has the highest percentage of local elected officials per capita of any state in the nation.

Frequently I was approached about these issues as a local government lawyer. I would first advise these decision-makers on the law and any applicable ethical principles. Then, I would ask them whether they would want that proposed action to appear on the front page of the local newspaper. If they said no, then I could respond that they may have already come to the right conclusion. If they said yes or even hesitated, then I asked them whether they could easily explain the action to someone who had just read that article. These questions conveyed my consistent message: timing and perception are everything.

We all know many inquiries on conflicts of interest are not easily answered. Recently I have had a few requests to comment about the following scenarios. My comments are general in nature and the reader should always consult their attorney about a specific factual situation.

  1. Local Government decision-maker is invited to a private dinner with a person who has regular involvement with their local government.

For our discussion the dinner is considered unsolicited and of nominal intrinsic value. South Dakota law does not definitively answer the question of whether the decision-maker should accept the invitation. State and local laws across the country vary on the legality and/or reporting requirements for accepting this invitation.

The benefit of accepting the invitation would be that it would provide the decision-maker a convenient means to obtain more first-hand information and opinion on the quality of service provided by their local government. Everyone has suggestions for improvement, right?

Suppose the dinner invitation is made in close proximity to when the decision-maker will be asked to render a decision on something for that person. For instance, what if the invitation is from a bidder/responder to a pending competitive bid or request for proposals issued by the local government? The public perception may be that the bidder/responder is gaining unique access to the decision maker that could taint their objectivity. It would create a very unfavorable perception if the decision-maker and the bidder/responder were seen at the restaurant together within a short time of when the person was appearing before the decision maker and requesting consideration of their proposal. This scenario could erode confidence in that local government. Yet, some public officers have ignored these red flags.

The failure to consider the public perception and timing of the proposed action can be detrimental to the effectiveness of a public officer. When I worked for the SD Legislature before I attended law school, we witnessed a certain lawmaker routinely be invited to a private meal by someone who had an interest in a bill coming before the body for a vote either later that day or later that week. While his colleagues wisely declined such poorly-timed invitations, this lawmaker usually accepted them. He defended his acceptance by saying that he needed “to hear them out.” It became a derisive joke among his colleagues that he would allow his vote to be purchased for the price of a meal as he usually voted according to the last opinion that he heard. As a result, his colleagues did not give much credence to his input or his legislative proposals. He was not an effective representative for his constituents.

  1. Invitation to a community event by someone who has regular involvement with the local government.

For our discussion, this invitation will be considered unsolicited and of nominal intrinsic value. These events occur in communities across South Dakota. A recent amendment to SDCL 1-25-1 (Open Meetings) recognizes that a quorum of a local governing body could attend such a function. The decision-makers and many others are invited to attend these events where a meal and beverages may be provided. The decision-maker will benefit from hearing input on important community issues and may also be approached by other area leaders on other important topics while attending the event. Suppose the host of the community event has an upcoming action item on the local governing board’s agenda. The timing and perception inquiry becomes much more problematic. If the event is in close proximity to their item being considered, then it may be advisable to decline the invitation in that instance.

Suppose a representative of an entity who is a frequent utilizer of the local government’s regulatory process offers to buy the public officer and his/her spouse a glass of wine while attending that event or even while out at a restaurant. For our discussion this would be unsolicited and of nominal intrinsic value. Consider the timing and perception of accepting this offer. Does the frequent utilizer have or will soon have something pending with the local government? If something is on the horizon, it may be best to politely decline.

  1. The Other Side of the Penny on Public Perception.

Abraham Lincoln said that a public officer holds a position of public trust. This philosophy governed his actions and he became regarded as one of the most effective leaders in our nation’s history while earning the moniker “Honest Abe.” A few of my clients avoided the above scenarios altogether as the safest approach for them. While I respected their good intentions, it potentially created a different perception problem. Public officers do not want to be perceived as aloof from the public that they serve, which can become an acute problem in a relatively sparsely populated state like South Dakota. Lincoln recognized that the public expected its public officers to be accessible as he humorously described the benefits of taking his regular “public opinion baths” while interacting with the public. A public officer’s effectiveness could be limited when they are not allowing themselves access to all the different viewpoints gained from attending these community events or from breaking bread with citizens. See SDCL 6-1-18 to 21 (recognizing public officers may receive input from many sources).

If you are now confused, then you are actually thinking more clearly about this issue than you may realize. Most of my decision-maker clients remained active in their community but came to me to discuss specific scenarios that were more problematic. After discussing the timing and perception issues, the proper course of action usually became more evident. Some of these decisions were difficult when a public officer had to refrain from doing something that they had been properly doing in prior years as a private citizen. Their primary motivation would be to maintain the positive image of the local government that they served.

Today’s world has been consumed by cynicism, which impacts the ability of local government to serve its citizens. We public officers must always consider the timing and perception issues involved in any of our actions. Please seek the assistance of your entity’s legal counsel in navigating those more turbulent waters. An objective law-trained advisor could provide valuable insights. Also, the SDPAA offers its Members the benefits of a Government Practices Hotline where expert attorneys are available to offer additional assistance on these types of inquiries, along with a variety of other government-related topics. If you would like to speak with someone about any of these services, please contact the SDPAA office at 800-658-3633 option 2 or by email at sdpaa@sdmunicipalleague.org.

David Pfeifle
Executive Director