Home Editorials Conflict of Interest: Chris Birch's Quandary

Conflict of Interest: Chris Birch's Quandary

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In the lead up to the 2012 presidential elections, a very small, alarmed group of people took every mention of President Obama as an opportunity to voice their belief that martial law would be declared and the election would be canceled.
The frequency and sheer number of this particularly detached sentiment was staggering. From articles about highly objectionable legislation like the National Defense Authorization Act to innocuous blurbs about taking Bo the dog for a walk, one only had to journey a couple comments down before getting ambushed by frantic warnings: “THERE WILL BE NO ELECTION.”
It was like an automated response from a Ron Paul hotline; “all our operators are busy, but please stay terrified, your paranoia is very important to us.”
Spoilers: there was no martial law. The United States’ free and democratic elections happened. Life… goes on.
But while the delusional conspiracy theories aimed at Mr. Tyrant-Face in Washington DC ran entirely on their own fumes and still continue to this day (in itself a puzzling premise), there is an actual bill to actually cancel elections in Anchorage, this year, by a lawmaker who is trying to extend his final term.
I wonder what happened to all the freaking out?
South Anchorage Assemblyman Chris Birch intends to introduce Ordinance 154 at Tuesday night’s meeting. The measure would amend city code to switch municipal elections from April, when they are currently held, to November, bringing them in line with state and federal elections. According to Birch, the move is meant to increase voter turnout, which has sunk to around 20 percent of registered voters.
The Assembly’s attorney, Julia Tucker, registered concerns which prompted Municipal Clerk Barbara Jones to ask for an advisory opinion from the city’s ethics board.
The concerns surrounded the fairly-clear conflict of interest Chris Birch would have in sponsoring a bill that would increase the length of his term (and, as a result, his pay) by up to nine months. The ethics board tripped and fell down a rabbit hole.
Municipal code (1.15.035.D.) provides a five-prong test designed to determine whether or not an assembly member has a conflict of interest:

  • Whether the financial or private interest held by the elected official or household member is a substantial part of the matter under consideration;
  • Whether the financial or private interest varies directly and substantially with the outcome of the official action;
  • Whether the financial or private interest is immediate and known or conjectural and dependent on factors beyond the official action;
  • Whether the financial or private interest is significant monetarily;
  • Whether the financial or private interest is of a type which is generally possessed by the public or a large class of persons to which the elected official or household member belongs.

Any assembly person answering in the affirmative of any of these provisions has to declare a conflict “[p]rior to comment, deliberation or decision on a matter coming before the elected body[.]”
And thus the fun part, as articulated by ethics board member Stephen Strom:

Here’s how it’s potentially really paradoxical, that, the person disclosing their conflict – the people who have conflicts that need to be disclosed may not participate in the deliberation about whether their conflicts are substantial. So, it may well be that no one’s allowed, by code, to even begin deliberating on the assembly about whether they’re in violation of the code.

The entire assembly would stand to gain, both monetarily and through a lengthened term.
“That strikes me as – I would call that substantial,” board member Terry Kelly remarked. “I mean, we’re dinging teachers who take gifts for more than $50.”
Chris Birch, in attendance at the first meeting, seemed annoyed. “My opinion is, let the voters make a decision at the polls on the merits of… the case.” But the conversation he is starting with this ordinance isn’t about that. Birch is attempting to sponsor legislation that would lengthen his term, with pay, for upwards of ten months. To his credit, he has said that he would turn down the pay increase, but can he speak for every other assembly member?
Rejecting the added pay doesn’t make it any less of a conflict of interest, and elected officials should not be put in charge of deciding their own term lengths, nor should they be put in charge of the pay or term length of their colleagues.
Municipal Clerk Barbara Jones summed up the problem with Birch’s moral argument:

It would be extremely relevant if the municipal code told us we must weight the private interest against the public interest, but that’s not what the code says. Assume he has the highest of all possible intentions… but then the question becomes, despite the best intentions and despite the highest motives, is there still an ancillary, substantial private interest?

The board answered, in no uncertain terms, in the affirmative. In a four page advisory decision, they found both that “no Assembly member may sponsor such an ordinance” and “no Assembly member may participate in the determination of another Assembly member’s conflict in this matter without himself or herself being in a conflict of interest.”

There may be very good reasons to move the election date. Increased public participation in elections is certainly a public good. However, laudable ends do not justify any and all means to achieve those ends.

Chris Birch took the decision and did what any responsible elected official would do: he promptly ignored it and added a section to his ordinance changing code to allow assembly members to sponsor legislation and deliberate over bills that change election dates. Conflict-be-gone!
For serious: THERE WILL BE NO ELECTION. No tin foil hats necessary.
“This reform will build efficiency, increase voter turnout and reduce municipal election costs,” Birch wrote in an editorial for the Anchorage Daily News, defending the move.
Unfortunately, there’s nothing that suggests either is true.
Placing municipal elections on the same date as the November general election will not save money. We learned this in September, the first time a proposal was made to move April’s election. The same costs that come with a municipal election in April would come in November, because municipal and state elections are administered by different bureaucracies. As I wrote at the time:

The clerk’s office would still be in charge of printing separate ballots (at a cost between $55,000-65,000). Voters would be forced to use two different voting machines. Municipal and statewide absentee and questioned ballots would have to be kept separate, creating all sorts of security risks. Two Municipal election workers, in addition to state election workers, would need to be stationed at every voting precinct (a position usually shared, given the different dates of municipal and statewide elections).

Similarly, there is no substantial evidence guaranteeing the date change would increase turnout – at least in off years where there are no statewide or federal elections. Statistics compiled by the conservative Alaska Policy Forum show that, while statewide elections do have higher turnout, there is large fluctuation from year to year, and the scattered nature of assembly elections makes it much more difficult to predict turnout. Last year’s poor turnout wasn’t a historic low – it was the fifth time since 1977 where we dipped to 20 percent or under. 1977, in fact, only turned out a little over 10 percent. It could very well be that the public just doesn’t like what you’re cooking, Mr. Birch.
People would best be advised paying close attention to what happens tonight. It should be alarming that this conversation is even taking place.
It’s not a good idea to let elected representatives choose how and when they will represent their constituents. We need elections. They should happen when they are supposed to happen. If the people would prefer the elections to be coupled with state and federal elections, they should be the ones to sponsor that change, via ballot proposition (which is also being proposed tonight by Assembly members Elvi Gray Jackson and Dick Traini). It should not be put in the hands of the Assembly or the mayor.