- Undue Gain
- Improper Influence
Undue gain is perhaps easier to understand if we talk about due gain first. This is what a public administrator or elected official receives in compensation for completing the job duties in the manner set out by contract, policy, law, etc. Generally it includes monetary payment (salary, per diem, etc.), benefits (health insurance, specified leave time, etc.), and possible benefits related to the job (minor use of a copier, tuition waiver for university employees, for example). Anything beyond that is UNDUE gain - extra payments or gifts to do the job one is already being paid for, special treatment of services (free tickets, meals, etc.)
Improper Influence is also easier to understand if we talk about proper influence. Normally, when an administrator makes a decision it is based on some set of decision rules. These could be specific criteria to get, say, a building permit. They could be based on a standard or procedure established for hiring new employees. There are also more general policies and procedures for how to spend money, and rules to prevent unlawful discrimination and privacy violations. Or they could be professional standards (for engineers, attorneys, or nurses, for example) or even unwritten, but known customary procedure. As you go higher up the organization, the decisions are less concerned with individual cases and more with general policy. Policy often takes one into unknown territory and there may not be specific guidelines on how to make decisions. But there will be procedural rules that, ideally, are intended to make the process open and fair. And there are basic management standards and techniques for anticipating and evaluating things like costs and benefits. Improper influence is when you take into considerations factors that are not in the sanctioned decision making criteria, such as whether taking a certain action will benefit oneself and/or one’s friends.
So if we look at the Anderson and Kott cases, we see in the bribery and extortion convictions, that they had undue gain - money and other benefits to do what they were already being paid for by their legislative salaries and per diem. There was also improper influence. The decisions they made were colored with more than the public interest and objective analysis of the issues; they also considered what their benefactors wanted them to do. And while both Kott and Anderson argued that these were decisions they would have made anyway, since they were consistent with their ideology, it is clear that they might not have pursued their positions with such zeal, and that they might have spent more time on other issues their constituents needed.
But it isn’t simply black and white. If a contractor who wants to do business with a government agency leaves a pen with the company’s name on it after a meeting, is that undue gain? If a law firm that does business with the Municipality of Anchorage sends a fruit basket to the Legal Department in December, is that going to lead to improper influence?
Here’s where we see how conflict of interest is a basic tension embedded in our culture (and most others.) Our personal lives are ruled by values of loyalty. Family and friends take priority over strangers. We give gifts and do favors that we freely exchange with people close to us. But when we go into public office, we are expected to make decisions based on the rule of law, on equal treatment to all (rich or poor, stranger or friend). So when people from our personal lives are also involved in our professional lives we have two different standards in conflict. But even strangers we come to know through our jobs should be treated politely and with respect - as people, not as objects. There are human decencies - exchanging pleasantries and doing minor favors - that we do naturally for people we come to know.
Those with an interest in specific governmental decisions take advantage of these impulses to be friendly and helpful. There was a great deal of testimony that Tom Anderson was a naturally friendly guy, eager to help out, to please. Lots of examples. His defense attorney argued that was all he was doing for Prewitt and Bobrick. Other legislators have told me, "I can't be bought for a $10 lunch." In fact they sound like they have been personally insulted when such actions are criticized. "I have to eat. This gives me a chance to talk to my constituents while I'm eating. I'm actually giving up my time." But if we stand back and look at it in terms of improper influence and undue gain, that answer doesn't hold up. If you have to eat, why not pay for your own lunch? Just say, "Fine, let's have lunch, but I pay my own way." If they pressure you or ridicule you, they are really testing your resolve and willingness to play ball. Even if the cost of the lunch doesn't have an effect on your action, the 90 minutes of private time to tell their side of the story, to give you their facts, in private, without someone with a different view their to challenge the accuracy of their facts may well influence your vote.
Of course my argument flies in the face of what's practical. Legislators must listen to constituents, usually in private. They also listen to proponents and opponents of various legislation well before the topic comes up in on the official public chamber. But these one sided conversations mean that legislators often only hear one side of an issue. One way to counter this is to have legislators imply publicly post their work calendars so all people can see how much time they've spent talking with whom. More work? Not too much. They pretty much have to keep a calendar anyway, and logging phone calls is good business practice, and caller id makes this easier to do. Perhaps no one would even look at the information. But at least it should be discussed with an open mind.
The point is to to have legislators themselves question business as usual, to look critically at "how we've always done it" against the dangers of undue gain and improper influence.
I'm going to try to write a series of posts looking at issues relating to understanding corruption using what has come out in the political corruption trials in Alaska. The theoretical framework is based on: Steven E. Aufrecht, “Balancing Tensions Between Personal and Public Obligations: Context for Public Ethics and Corruption” in Dwivedi, O.P. and J. Jabbra (2007) Public Administration In Transition: A Fifty-Year Trajectory Worldwide, Vallentine Mitchell Publishers
