It’s A Question of Ethics

“Ethics is knowing the difference between what you have a right to do and what is right to do.” — Justice Potter Stewart

There has been some debate regarding the ethics of Claudia Alvarez’s deciding vote last week that determined she received nothing but an unspecified rebuke of her anti-Semitic comments made while chairing a meeting of the City Council on August 24, 2011. Both the Orange County Register and Voice of OC have published articles that suggest that because there was no financial interest at stake in her vote, there was no ethical conflict. I take issue with that conclusion. Ethical violations are not necessarily always legal conflicts of interest.

As I mentioned last week, an ethical conflict arises when there is a conflict between a person’s personal interest and the public interest. Whether a vote is legal, does rest upon the answer to the question of financial interest. But ethical behavior doesn’t stop at financial interest. If an elected official is asked to vote on a matter that impacts a relative, there is an inherent conflict between the public interest and their personal interest. Such conflicts are likely why Councilman Sal Tinajero abstained from voting on the appointment of his son as city Youth Commission Advocate on March 7, 2011. While Tinajero had no financial interest at stake, a conflict existed and he appropriately abstained from voting on the matter. If Claudia Alvarez had a partner who was up for appointment to a city commission, it would be appropriate for her to abstain from that vote. It is reasonable to then conclude that if she were to vote on something that would benefit her personally or in her political career, the ethical action would be to abstain.

By ordinance, the city has established that the latest edition of Roberts Rules of Order, Newly Revised shall govern the procedings of the Council. The Mayor is charged with the duty of using sound discretion in applying those rules. Ethics, as dictated by Roberts Rules of Order make it clear that while Alvarez could not be prevented from voting on her own discipline, she should not have, and certainly should not have been the deciding vote.

Here is what it says in §45 (Voting Procedure), in the first subsection on Rights and Obligations in Voting (I’m quoting from the Perseus Publishing tenth edition, pp.394-395):

No member should vote on a question in which he has a direct personal or pecuniary interest not common to other members of the organization.  For example, if a motion proposes that the organization enter into a contract with a commercial firm of which a member of the organization is an officer and from which contract he would derive personal pecuniary profit, the members should abstain from voting on the motion.  However, no member can be compelled to refrain from voting in such circumstances.

The rule of abstaining from voting on a question of direct personal interest does not mean that a member should not vote for himself for an office or other position to which members generally are eligible, or should not vote when other members are included with him in a motion.  If a member never voted on a question affecting himself, it would be impossible for a society to vote to hold a banquet, or for the majority to prevent a small minority from preferring charges against them and suspending or expelling them..

At a minimum Mayor Pulido should have notified Alvarez of her duty under Roberts Rules of Order to consider the ethical impact of her voting on the matter of her own discipline. Either he didn’t know, or chose to ignore his obligation to Alvarez, his colleagues, and the City to raise the issue. I suspect it was simply a matter of the ends justifying  the means, which was to get the motion he supported to pass and no other discipline of Alvarez to be considered.

I did ask Interim City Attorney Joe Straka about the appropriateness of Alvarez’s vote and he indicated that “since she had no financial interest, she was permitted to vote on the matter.”

Okay, so I’ve got to wonder, if that’s the case then what is supposed to happen if a member of the City Council votes on a matter that they clearly have a financial interest in? Specifically, their appointment to boards of outside agencies for which they receive compensation.

On January 4, 2011, Mr. Straka’s day of appointment as Interim City Attorney, Mayor Pro Tem Claudia Alvarez was reappointed to the Orange County Water District Board of Directors. In 2010, Alvarez received $30,000 in compensation and benefits for her service on the board. In 2011, as chair, she is likely to reach a level of compensation of about $35,000 due to the increase in meetings she will be required to attend. Alvarez voted in favor of her appointment to the Orange County Water District Board. Based upon Straka’s own definition, and the City Charter, Alvarez has voted on a matter for which she has a significant financial interest.

On January 18, 2011 Councilman Vince Sarmiento also voted on his appointment to the Transportation Corridor Agency, a position that provides a stipend of $120 per meeting. I suppose that would mean he voted on something he had a financial interest in, thus violating city law and ethical standards of conduct.

While both appointments were unanimously passed, the city code and ethical standards do not allow for the excuse of “but it wasn’t the deciding vote.”

So I guess, given the unethical actions of the two attorneys sitting on the Council I really shouldn’t be too surprised that they were the deciding votes in giving Alvarez a pass on discipline for her unethical and inappropriate conduct on August 24, 2011. When it come to ethics, they just don’t get it. Here’s another fun part; the person responsible for enforcing the city charter is the same City Attorney under whose watch it was violated. I’m not holding my breath waiting for a prosecution by Straka any time soon.

Such is life in the Banana Peel Republic of Santa Ana.