I am playing with the idea that the notion of "appearance of impropriety" in the law of attorney and government ethics is a fount of abuse. We use it or don't use it depending on whose ox is being gored.
Here's a case study. Locally, we have folks(think One Wisconsin and the Wisconsin Democracy campaign) practically ready to waterboard Justice Annette Ziegler for acting on mostly uncontested matters in which she may have had an extremely attenuated financial interest. As I have written in the past, she was wrong to violate a rule that is essentially designed to avoid the appearance of impropriety (that's why I call it a prophylactic rule)and I think that some type of reprimand is in order. It's not an adequate defense to say that she decided the cases properly, i.e., that the underlying decision was right.
Where will One Wisconsin and the Wisconsin Democracy Campaign be on Jennifer Morales' conflict of interest on the proposal to grant MPS employees domestic partner benefits? Morales is the domestic partner of an MPS teacher.
It may be that Morales can lawfully vote on the proposal and I haven't thoroughly researched the issue, but she may have a real problem here.
The state's ethics code for local elected officials , found in section 19.59 of the statutes, prohibits local officials from taking action on any matter in which she or her family has a substantial interest. There is an exception for taking actions "concerning the lawful payment" of employee salaries and employee benefits (or acting on a proposed change in a municipal or county ordinance). Maybe you could interpret that exception to apply to actions that set the level of these lawful benefits (although that's not very clearly communicated by an exception that is limited to "payment"), but the state ethics board doesn't appear to do so. The ethics board, for example, has opined that a school board member whose spouse is employed by the district as a teacher should not participate in discussions, negotiations or votes on the teachers' contract. More recently, the board has advised school board members who are retirees of the district not to vote on matters that may affect their health benefits.
The school board's own ethics code has a similar provision. In fact, MPS' position is arguably broader because it doesn't contain the "lawful payment" exception.
We know that local bodies, including MPS, vote on their own salaries. The constitution (for state legislators) and state statute (for municipal officials)addresses that problem by providing that the elected official face the voters again before collecting increased compensation. There appears to no comparable provision governing MPS so perhaps by virtue of the time honored maxim generalia specialibus non derogant, it may be that the statute governing the board's power to set its salary controls.
But that doesn't help us here. This isn't a vote on board compensation. The City Attorney has apparently opined that a Board member may vote on teachers contracts notwithstanding being married to a teacher. Perhaps he relies on the "lawful payment" exception and argues that the state ethics board got it wrong. Maybe that works, but, then again, the Board's ethics code does not have this exception.
And even if the exception gets her off the legal hook, how is Morales' position here any different than Ziegler's? If it looks bad for Ziegler to rule on cases presenting no substantial contested issues because it may theoretically add a neutrino's worth of value to some stock she owns, then why doesn't it look just as bad for Morales to push and vote upon a benefit that is offered in only four other districts and that may be worth close to $ 20,000/yr for (potentially) the rest of her life?
Maybe there is a way to justify her participation. The response of the board, at least as reported in the paper, sounds a lot like the response that was deemed inadequate for Justice Ziegler. It amounts to an assertion that the proposal is "right," so we can apparently overlook Morales' conflict. But whether it is right or not (or whether Morales sincerely believes that partner benefits are good policy which I assume she does) is not the point. The point is the conflict.
If they were truly interested in ethics, you'd think that Mike McCabe and Cory Liebman would be all over this. I am not surprised that they are silent.