11/01/2008 05:12 am ET | Updated May 25, 2011

The Appearance of Rational Argument

An Op-Ed piece in the weekend Wall Street Journal by Greg Sandow took almost thirty six column inches to rail against "the appearance" of conflicts of interest insofar as they relate to music reviewers and orchestras. This dust-up seems to have been caused by the Cleveland Plain Dealer's decision to make Donald Rosenberg its former music critic.

The Publisher of the Cleveland Plain Dealer, one Terrance Egger, is a member of the Board of the Cleveland Orchestra. Mr. Rosenberg, according to Mr. Sandow, was less than charitable in his reviews of Cleveland Orchestra concerts conducted by its Music Director, Franz Welser-Möst. The hubbub seems to center around the question of whether Mr. Egger's position on the Board of the Cleveland Orchestra makes it impossible for the paper - and by extension its reviewers/critics - to "cover the orchestra objectively." Mr. Sandow suggests that the classical music corner of the World Wide Web is abuzz over all of this, suggesting that the "demotion" of Mr. Rosenberg crates the appearance of a conflict of interest. The issue has been aired in both the New York Times and the Los Angeles Times. Yet the crucial argument advanced by Mr. Sandow is: "But remember the rule - it's the appearance of conflict of interest that counts."

This is silliness wrapped in righteous, empty rhetoric.

In the first instance, every performing arts organization looks upon reviewers as an adjunct of its marketing operation, and when the reviewer is unhappy about a performance the organization complains. Sometimes they get upset and yank the reviewer's tickets, as happened to me twice in the days when I was a music reviewer for a minor metropolitan daily. Being made persona non gratis was both a badge of honor and a blessed relief; it meant I never had to sit through those companies' wretched performances ever again.

Sometimes a lousy review will provoke an irate call from the organization's management to the reviewer's editor, or spark a letter-writing campaign calling into question the reviewer's intelligence, knowledge, experience, qualifications and/or parentage. And sometimes a member of the arts organization's board will tactfully have a few words expressing displeasure with the newspaper's publisher at the country club's bar.

In other words, when a performing arts organization has a complaint with a reviewer, it has a vast array of ways to make its displeasure known to the people who employ the "offending" reviewer. This is hardly new. Worse, and fatal to Mr. Sandow's argument in my view, is the fact that these sorts of tactics would undoubtedly be practiced whether Mr. Egger was on the Cleveland Orchestra Board or not.

But the crux of Mr. Sandow's argument is that Terrance Egger's presence on the Board of the Cleveland Orchestra creates the appearance of a conflict of interest when the self-same Mr. Egger's employees, who could have been acting on orders from On High (i.e., Mr. Egger's office), reassign a music critic. If, in fact, the appearance of conflict of interest was the touchstone in this field, Mr. Rosenberg would have been seen leaping for joy when Mr. Egger joined the Cleveland Orchestra Board: Rosenberg could insure himself of perpetual employment were he to write unfavorable reviews, since re-assigning or firing him would create the appearance of a conflict. But if he actually liked the performances he'd be deemed a shameless suck-up and subject to sacking.

It ought to go without saying that the Executive Suite at the Cleveland Plain Dealer has denied that any pressure of any sort was put on it by the Cleveland Orchestra Board, and the orchestra has likewise denied any impropriety whatsoever (presumably beyond the usual bitching and moaning that greets an unfavorable review). Mr. Sandow's argument is that by creating a situation where the very possibility of impropriety could arise, that is, the appearance of a conflict of interest, journalistic integrity is somehow threatened.

For decades now, the standard in the legal field (my day job) has required an attorney to avoid "the appearance of impropriety." This so-called standard has spilled over into many other areas of public and private life, to the woe of both public and private life. Simply put, actual "impropriety" - or in this case a conflict of interest - is based on an objective standard: I know perfectly well what the statutes, regulations, case law and customs are and I am professionally competent to render an opinion as to what is improper and what is proper.

The "appearance of impropriety," however, is a standardless standard. It is whatever you, as the person perceiving the conduct, elect to make it. My conduct may be wholly, demonstrably proper, but you may believe that it has the "appearance of impropriety." On what is your belief based? Usually upon nothing other than your idiosyncratic sense of smell or your own prejudices and biases. You, in short, want me to govern my conduct in accordance with a standard that amounts to nothing more than "You think it smells and therefore it smells, facts be damned."

If the standard in fact is to be - in the case of the Cleveland Plain Dealer and the Cleveland Orchestra - the mere appearance of conflict of interest, then the newspaper should refuse all advertising from the orchestra (since advertising revenue could be impacted by an unfavorable review), any and all newspaper executives should flee to the nearest exit when approached by anyone affiliated professionally or as a volunteer with the orchestra (so as to avoid the appearance of being lobbied), the newspaper should refuse to allow the orchestra to be the recipient of any of its charitable largesse (shows favoritism) and the newspapers should refuse to allow the orchestra to provide complimentary tickets to the newspaper's reviewers (sure looks like the appearance of bribery to me).

What lurks beneath the surface of this dust-up is the now traditional view of those who are paid to express their opinions that those who pay their salaries are craven, venal and cowardly men and women, people who when "spoken to" by their friends, associates or the paper's advertising sales department will shrivel and capitulate by strong-arming a reviewer into docility - or firing/reassigning the reviewer if he or she refuses to knuckle under. My experience indicates that such fears are overblown at best and pure fiction at worst.

In my long and not particularly illustrious journalistic career my editors received many calls and letters from arts organizations whose performances I had panned... and laughed them off. If they had received calls from the newspaper's Executive Suite neither the fact of those calls nor their content was ever related to me. One of my earliest editors, a crusty old coot who has sadly gone on to his Greater Reward, was fully capable of telling the publisher of the newspaper in the mildest but most unmistakable manner possible to defecate in his fedora had the publisher displayed the lack of sense to try to indirectly influence one of that editor's "boys."

So it is with some sadness that I must suggest Mr. Sandow is barking up the wrong tree. There is no actual conflict of interest here, and trying to gin up an argument based on the "appearance of a conflict" is a complete waste of newsprint. That he smells a conflict of interest does not mean such a conflict exists. And by the way, doesn't the Wall Street Journal accept advertising from performing arts organizations?

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