Robbins: What constitutes conflict of interest? (column)
I read with interest a letter to the editor in the Vail Daily regarding the brouhaha over the Hahnewald barn in Avon. The author was someone I know — but not well — but whom I like and respect. What he claimed, while clearly upset over the direction that the Town Council had taken in determining to save and relocate the barn, was that two of the council members had a conflict of interest.
So that got me to thinking.
First, to the specifics of the author’s claim.
The first conflict he posited was that one of the council members was from the family that at one time owned the barn and in so doing, a conflict of interest was created. The other conflict, he maintained, was that another council member is a wedding planner and, as such, she might stand to profit from the new event center in Avon that the barn might one day become.
With all due respect, and notwithstanding the author’s assertion that the second council member threw herself on the sword of conflict … not so much. In neither case would there — at least legally — be a conflict of interest.
One last word about the letter before I ‘splain. He noted that “The town attorney who oversees these matters and is there to protect the town’s interest did not object …” to what the author saw as a conflict.
What then, constitutes a conflict of interest?
It may be defined as generally occurring in one of two circumstances. In the first, it may be a situation in which a public official or fiduciary, contrary to the obligation and duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically financial benefit. The second may arise where a person has a duty to more than one person but cannot do justice to the actual or potentially adverse interests of both parties. An example might be where an attorney, business advisor or Realtor cannot represent two parties whose interest might reasonably be or become adverse.
In the first of these circumstances, a conflict may arise where, say, a public official approves a zoning change that benefits property he or she owns.
In the second, a conflict of interest may arise where one is involved in multiple interests — financial or otherwise — and serving one interest could involve working against another.
In both cases, yikes!
That isn’t this
But that ain’t what we’ve got here.
In the first instance, the council member’s family is not the council member. Although I may be my father’s son, I am not legally responsible for him and neither is he for me. In any event, the author claimed that the council person’s family used to own the barn. How long ago, he did not say. It seems, however, as the horse was (forgive me) already out of the barn and the barn was apparently sold to some third party before the council took up the matter, the council member’s family’s former ownership has little bearing on the potential conflict.
I could perceive the crack of an argument if there had been some quid pro quo, where the council person, with a direct interest in the sale, made a promise to the buyer that, as the council person had a vote, that she would try to drive the outcome of the barn to a profitable conclusion for the buyer. This was, however, not alleged and does not appear to comport with the facts.
The second allegation of conflict is a bit closer but only in the way that close counts in horseshoes. In order for there to be a colorable conflict, the relationship would have to be at least somewhat direct. The more attenuated the nexus between cause and effect, the more potential conflict retreats to the horizon. One could argue that almost anything could be a conflict.
The council voted in favor of repaving the roads only so they could drive on smooth roads!
But that seems far afield.
While I give the councilperson credit for offering herself up on the altar of potential conflict, I disagree that there is one. That she “might” one day schedule an event in what could potentially become a pleasant venue seems like too many intervening ifs. If, instead, she had already penned contracts for weddings at the as-yet-to-be-constructed repurposed barn, then, well … yeah. But that does not seem to be the case. Add to that as well that there are plenty of other venues — including, presumably, the ones she currently employs and the scent of potential conflict seems a bridge too far.
I suspect the town attorney did not protest because there was no reasonable protest to be had, at least upon the grounds of conflict.
While disposition of the barn does indeed seem to be a barn burner, conflict on the terms recited by the author does not seem to be apt fuel for the fire.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.