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Appearance of impropriety

By
November 9, 2007

The term “appearance of impropriety” became a standard measurement in assessing conflicts of interest during the Supreme Court confirmation battles of the Nixon administration. It first came to prominence when the Senate rejected Judge Clement Haynsworth’s nomination because of his ownership of a small amount of stock in a company that came before his court, even though a favorable ruling he handed down did not impact that stock in any appreciable way.

The fact that the nominee had failed to remove himself from the case because of that ownership, while not a major breach of the ethics code, was viewed nonetheless as an excuse to vote against him. In reality, the entire travesty was a politically motivated exercise stimulated both by union leaders who wanted to prevent the seating of a South Carolina judge they felt was unfriendly to the organizing of Southern textile plants and by Democrats who were interested in getting even for Republican success in denying Associate Justice Abraham Fortas’ elevation to chief justice.

Since that time the act of appearing improper, whether actual or not, has caused the defeat of a number of candidates for public office. It also has resulted in a new awareness and appreciation of the obligation of public servants to remain above suspicion even in appearance. That is true in most cases, but not the Consumer Product Safety Commission, whose chairman, Nancy Nord, apparently sees nothing wrong in her fellow commissioners and staff members tripping around the world at the expense of those they are supposed to be regulating.

For anyone still uncertain about the duties of the commission despite its self-explanatory title, it oversees the suitability for sale of any number of products, including children’s playthings. Given the highly publicized dangerous defects in toys from China and elsewhere, such oversight is especially important.

Yet Nord and the panel’s other top officials repeatedly took costly trips paid for by toy manufacturers in what has to be one of the worst examples of an “appearance of impropriety” in recent memory. In 2004, Nord’s predecessor as chairman, Hal Stratton, took an $18,000 trip to China partially paid for by the Toy Industry Association, according to reports.

Most astounding was Nord’s reply to all of this. She said the trips had been thoroughly vetted by the legal staff and were determined not to have violated federal rules that bar acts that would cause “a reasonable person” to question the integrity of the agency or its programs. Well, it turns out that the reviews were not quite what they should have been, some apparently coming after trips had been made. For instance in the China trip, Stratton was accompanied by John Mullan of the agency’s office of legal counsel, which had approved the trip. That seems somewhat of a conflict of interest in itself.

Perhaps the most incredible statement Nord made in defending all this gallivanting, which included rental cars and hotel accommodations, was that they were reviewed not only for their legality but also to see “that there is no appearance of a conflict of interest.” Are you kidding me, lady? Did you actually say that with a straight face? Who was doing the reviewing, an idiot or an import from the Sicilian mafia? If a government official accepts expenses for a trip from one whose interests are closely tied to that official’s decisions, it is at the very least what cost Haynsworth a seat on the Supreme Court — an appearance of impropriety. If it looks, walks and quacks like a duck, it must be a duck. Right?

The amount of insensitivity to ethical standards in this case clearly shakes any faith a parent might have in buying a toy these days, even ones with the commission’s certification. Just the coziness that exists between industry representatives and their regulators is scary. Nord seems, as one critic was quoted recently, utterly tone deaf when it comes to these practices. There may be some reason for the commission to travel to industry fairs, meetings and factories, but none for allowing the regulated to pay. If the government can’t afford to make the trip, it shouldn’t go. Quite obviously every minute wasn’t spent on business, which sharpens the appearance of wrongdoing even more.

Nord’s lack of understanding about what is or isn’t allowable and her arrogance about it truly disqualifies her for the crucial assignment she holds. The entire review process is questionable and should be overhauled, if not the agency itself. Let’s hope we’re only talking about appearances here.

(E-mail Dan K. Thomasson, former editor of the Scripps Howard News Service, at thomassondan(at)aol.com.)