Unethical behavior: “Actions and behavior that violate the standards of a person’s profession.” — Black’s Law Dictionary.
Missouri Revised Statutes §105.452: “Prohibited acts by elected and appointed public officials and employees. 1. No elected or appointed official or employee of the state or any political subdivision thereof shall: (1) Act or refrain from acting in any capacity in which he is lawfully empowered to act as such an official or employee by reason of any payment, offer to pay, promise to pay, or receipt of anything of actual pecuniary value paid or payable, or received or receivable, to himself or any third person, including any gift or campaign contribution, made or received in relationship to or as a condition of the performance of an official act, other than compensation to be paid by the state or political subdivision.”
Did Fourth Ward Councilman Ian Thomas’ actions concerning the agreement with the developers of Oakland Crossings constitute a violation of Missouri law?
Unfortunately, there is no clear answer to this question without knowing all of the facts yet. Two Columbians who complained to the Missouri Attorney General’s Office hope an investigation will reveal those facts.
What is known is that the developers of Oakland Crossings offered a payment to the Columbia Community Land Trust so affordable housing could be built in Columbia in exchange for Thomas’ positive vote on the project. The amount of the “donation” was to be $40,000, what Thomas said was about equal to the construction subsidy required for a single affordable home.
During his negotiations with the developers, Thomas sought advice from the city counselor about how to make the deal work. She instead told Thomas that the action would be in possible violation “by taking action in exchange for a payment to a third party.”
Thomas canceled the agreement, and the donation was never made. Thomas recused himself from voting on the matter — which never came to a vote because Mayor Brian Treece canceled a scheduled public hearing — and reported his actions to the Missouri Ethics Commission.
According to the two complainants, Jason Gavan and James Charles Meyer, the city has run a “pay to play” scheme for years. Gavan told the attorney general that such “abuse is typically carried out through off-the-record communications, but it has become so common that Mr. Thomas seems to not even be aware that it is considered corruption.”
The published reports did not mention other similar actions possibly taken by other members of the council over the years.
Nothing in the law says that accepting or making a financial inducement needs to be purposeful. The question: Did Thomas make an error of judgment, or did he purposely violate the law? Or was this an example of quid pro quo practices for the members of City Council?
The question of “illegal” versus “unethical” comes into play here. As a former administrative hearing officer, I know how difficult it is at times to draw that line. There are many incidents when an action is wrong but not a violation of statute.
This leads us to another legal term — res ipsa loquitur, or “the actions speak for themselves.” Did the simple acceptance of the initial agreement by Thomas constitute a violation of state law? Because there was no actual “donation,” was the act illegal?
Like the game of golf, self-reporting a possible violation of the rules is an important point. Upon learning that his actions were contrary to the law, Thomas reversed course. The question as to when the action requires a penalty usually falls to the rules officials, in this case the Boone County Sheriff’s Department, the Boone County prosecutor and eventually the courts.
In addition to investigating Thomas, I believe the developers of Oakland Crossings also need to be looked at for violating §576.010 RSMo concerning the possible bribing of an elected official. Or did they also believe that the “donation” was in good faith and proper under the laws of the state?
I do not think Thomas or Oakland Crossings intended to violate the law by accepting the agreement. I believe this was a simple error based on the enthusiasm of Thomas for acquiring the affordable housing the city so desperately needs.
Unethical behavior? Most likely.
A violation of Missouri statute? We will have to wait and see.