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May 26, 2016
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Let your ‘yes’ be ‘yes’

The ethics controversy that has erupted recently in the Sullivan County Legislature centers around the concepts of conflict of interest and appearance of impropriety, and an unusual county ethics rule that requires that an abstention on the basis of apparent improprieties that do not meet the technical standard of “conflict of interest” be recorded as a “yes” vote.

Specifically, legislators Jodi Goodman and Leni Binder have been accused of impropriety in connection with accepting box seating at Bethel Woods from Stuart Salenger, and voting twice in favor of admitting parcels owned by Salenger into the county’s Agricultural District Number Four.

Binder and Goodman have responded that current rules for the county legislature make it effectively impossible to abstain in circumstances where there is only an appearance of impropriety, rather than the more strictly defined “conflict of interest,” because the county requires that abstentions in the former case be counted as a “yes.” They are calling for a rule change. Others defend the current rules by saying that requiring abstentions to be counted as “yes” forestalls legislators from using the appearance of impropriety as an excuse to avoid politically tough votes.

Goodman has said, “We believe it would be preferable to amend the rules of the legislature to permit a legislator to abstain under circumstances where a legislator has a close relationship with, or has been the beneficiary of hospitality from, a person or firm who has an interest in a matter pending before the legislature.” We think she has a point.

First of all, we would argue that, in a democracy, appearances—not just actual conflicts of interest—are important. That’s because what is at stake is the public trust. If the public does not have confidence that their representatives are making decisions dispassionately, and without bias in favor of some particular people or constituencies with whom they have close relationships, they will lose their trust in government. Loss of trust means loss of involvement, low voter participation rates and a public conversation that breaks down in vitriol and accusations rather than constructive dialogue. The types of situation cited by Goodman, whether or not they are a matter of appearance or actual conflict of interest, are to be avoided.

Second is the question of precedent. The practice of saying that an abstention means “yes” is unusual in this country. In the United States Congress, for instance, members may vote “present,” which counts neither for nor against the measure at hand, effectively an abstention, and certainly not a “yes.” In the New York State Legislature, an abstention is not counted as either “yes” or “no.”

Of course, “everybody does it” (or doesn’t do it) is not necessarily a conclusive argument. But the rationale given by supporters of the “yes” rule is even less so. The argument is apparently that, if the rules as to conflicts of interest were broadened so that abstentions on the basis of the types of conflict Goodman cites weren’t counted as a “yes,” legislators might use them in order to avoid hard votes and therefore be politically safe.

But in fact, under the current system there’s a 50% chance, with regard to any vote, that legislators will be able to cast exactly the vote they want to cast, and still find political cover in the case that it’s hard or unpopular, by claiming that they had no choice but to abstain (and hence effectively vote yes) due to the ethical necessity to disclose some gift, connection or advantage they have obtained. The current system, in other words, only protects against situations in which politicians would like to vote “no” while absolving themselves of responsibility. (Indeed, in terms of the rationale given for this rule, it would make just as much sense to have an abstention counted as a “no.” The whole thing seems completely arbitrary.)

Both common practice and logic suggest that the advantages of having an abstention count as a vote, either yes or no, are vanishingly small. The interest of public trust, meanwhile, is paramount to a democratic system. Let’s just do it the time-honored way and stop splitting hairs: an abstention is an abstention, a “yes” is a “yes,” and a “no” is a “no.” Both conflicts of interest and the appearance of impropriety are to be avoided, and the way to do so is to keep the vote of the legislator in question out of the matter entirely.