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The Dallas Council Facilitates Pay to Play In Secret Based on Questionable Legal Advice
Tuesday, May 31st, 2011
Robert Wechsler
As discussed in an
earlier
blog post, eighteen months ago the Dallas council, under the
prodding of the mayor at the time, passed
some ethics reforms. According to a
Dallas
News editorial last month, only six months later the council backed
off reporting requirements for gifts they receive, creating a number of
exceptions.
One of the new provisions prohibited campaign contributions to a council member while a zoning case was being decided by the council and for 60 days afterwards. But then in April, as part of the consent agenda, without discussion, developers' employees and representatives were excluded from this prohibition (only property owners, their officers and directors are now covered), and the 60-day prohibition was shortened to 30 days, apparently so that contributions could come pouring in faster, appearances be damned.
By "representatives," the law was referring to individuals representing the property owner in the particular matter, that is, its lawyers, lobbyists, public relations advisers, etc., that is, people who can easily pass on the developer's money and have a very strong incentive to help out their clients with their own funds.
A similar prohibition regarding contributions from negotiating city contractors was also shortened to 30 days.
What changed in the last 18 months? It's campaign time, so now these prohibitions, passed for the next election season, are actually taking effect. In other words, the council doesn't want the prohibitions to take effect. They were just meant for show.
This explains why the prohibitions were overturned as silently and secretly as possible. Perhaps Dallas needs a rule that prohibits ethics amendments without a public hearing, on at least one week's notice, and a public debate. The Dallas council certainly lacks the self-control necessary to prevent helping themselves to contributions from those whose projects they have just approved. And its members lack the transparency, or decency, to tell the public who put the ethics amendments on the consent agenda, which is always approved unanimously without debate.
Now, to be fair to the council, I should let you know that it insists that it actually improved the ethics rules. How? By extending the prohibitions to include contributions to all council candidates, not just candidates who are already council members. In other words, they included their opponents, something that must have been very hard for them to do.
But if the council really intended to improve the ethics rule during an election season, why didn't they make a big deal about it? Nobody hides good ethics reforms during an election season. The Dallas council would be the first in the history of the world to do this. If what they say is true, they should get some sort of award.
The Prohibitions Are Actually Discussed
Fortunately, there are members of the Dallas council who were troubled by the way this whole affair was handled. So in early May the matter was actually discussed.
According to a column by Jim Schutze in the Dallas Observer, Dallas's city attorney told the council that "the rules had to be loosened ... to allow more people to give them money sooner after the council votes on issues important to those people. 'There are companies or businesses that will always have a matter pending before the city council during some designated period. As a practical matter those companies would be prohibited from contributing to city council candidates.'"
In fact, the city attorney said that the prohibition caused a "hardship for companies that wanted to give more money to council members right after important votes." (these are Schutze's words, not the city attorney's) I don't know about you, but my eyes tear up at the thought of all this hardship.
Influence or Pay to Play
It gets worse. Schutze says that lobbyists called him up and said effectively, "[The council] just slipped through a change in the law so they can come after our clients for even more money for their damn votes."
That makes sense. I can't believe that any developer or contractor would be in a rush to reward a council member for voting their way. To developers and contractors, 60 days would be fine, 90 days would be finer. Only officials interested in speeding up their pay-to-play takings would consider shortening an already short period.
How Far Can Citizens United Be Stretched?
The council has created an ad hoc ethics committee to reconsider the changes. According to an article this week in the Dallas News City Hall blog, the committee agreed that the time frame should be changed back to 60 days. And the city attorney said that the change to 30 days was made not for legal reasons, but due to requests by council members. However, the other changes, he said, were a response to the Citizens United decision.
That's ridiculous. Citizens United involves independent expenditures, not campaign contributions. And the Dallas rule deals with a clear corruption situation, where it is not just some random business supporting a random candidate, but a business that is negotiating with the council on a contract or zoning change.
This just keeps getting worse and worse. Considering the lack of transparency, the seriously misguided advice given by the city attorney, and the fact that all this is being done during an election season, the Dallas council should skip the debate, admit its errors, and immediately rescind its amendments dealing with them, if it all, next year.
A Good Addition to the Westminster Approach
In my most recent blog post, I wrote that one of the weaknesses of the Westminster approach to campaign finance was that it did nothing about campaign contributions made after a matter involving the contributor had been voted on. What has been happening in Dallas shows a good way the contributor-official relationship can be dealt with after a matter benefitting a contributor is over.
After all, in terms of the appearance of impropriety, there is no difference between rewarding an official before the fact and rewarding an official after the fact. And there's no reason to make life easier for untrusting people, that is, those who don't trust officials to come through for them and, therefore, wait until after the vote to give their reward.
Robert Wechsler
Director of Research-Retired, City Ethics
---
One of the new provisions prohibited campaign contributions to a council member while a zoning case was being decided by the council and for 60 days afterwards. But then in April, as part of the consent agenda, without discussion, developers' employees and representatives were excluded from this prohibition (only property owners, their officers and directors are now covered), and the 60-day prohibition was shortened to 30 days, apparently so that contributions could come pouring in faster, appearances be damned.
By "representatives," the law was referring to individuals representing the property owner in the particular matter, that is, its lawyers, lobbyists, public relations advisers, etc., that is, people who can easily pass on the developer's money and have a very strong incentive to help out their clients with their own funds.
A similar prohibition regarding contributions from negotiating city contractors was also shortened to 30 days.
What changed in the last 18 months? It's campaign time, so now these prohibitions, passed for the next election season, are actually taking effect. In other words, the council doesn't want the prohibitions to take effect. They were just meant for show.
This explains why the prohibitions were overturned as silently and secretly as possible. Perhaps Dallas needs a rule that prohibits ethics amendments without a public hearing, on at least one week's notice, and a public debate. The Dallas council certainly lacks the self-control necessary to prevent helping themselves to contributions from those whose projects they have just approved. And its members lack the transparency, or decency, to tell the public who put the ethics amendments on the consent agenda, which is always approved unanimously without debate.
Now, to be fair to the council, I should let you know that it insists that it actually improved the ethics rules. How? By extending the prohibitions to include contributions to all council candidates, not just candidates who are already council members. In other words, they included their opponents, something that must have been very hard for them to do.
But if the council really intended to improve the ethics rule during an election season, why didn't they make a big deal about it? Nobody hides good ethics reforms during an election season. The Dallas council would be the first in the history of the world to do this. If what they say is true, they should get some sort of award.
The Prohibitions Are Actually Discussed
Fortunately, there are members of the Dallas council who were troubled by the way this whole affair was handled. So in early May the matter was actually discussed.
According to a column by Jim Schutze in the Dallas Observer, Dallas's city attorney told the council that "the rules had to be loosened ... to allow more people to give them money sooner after the council votes on issues important to those people. 'There are companies or businesses that will always have a matter pending before the city council during some designated period. As a practical matter those companies would be prohibited from contributing to city council candidates.'"
In fact, the city attorney said that the prohibition caused a "hardship for companies that wanted to give more money to council members right after important votes." (these are Schutze's words, not the city attorney's) I don't know about you, but my eyes tear up at the thought of all this hardship.
Influence or Pay to Play
It gets worse. Schutze says that lobbyists called him up and said effectively, "[The council] just slipped through a change in the law so they can come after our clients for even more money for their damn votes."
That makes sense. I can't believe that any developer or contractor would be in a rush to reward a council member for voting their way. To developers and contractors, 60 days would be fine, 90 days would be finer. Only officials interested in speeding up their pay-to-play takings would consider shortening an already short period.
How Far Can Citizens United Be Stretched?
The council has created an ad hoc ethics committee to reconsider the changes. According to an article this week in the Dallas News City Hall blog, the committee agreed that the time frame should be changed back to 60 days. And the city attorney said that the change to 30 days was made not for legal reasons, but due to requests by council members. However, the other changes, he said, were a response to the Citizens United decision.
That's ridiculous. Citizens United involves independent expenditures, not campaign contributions. And the Dallas rule deals with a clear corruption situation, where it is not just some random business supporting a random candidate, but a business that is negotiating with the council on a contract or zoning change.
This just keeps getting worse and worse. Considering the lack of transparency, the seriously misguided advice given by the city attorney, and the fact that all this is being done during an election season, the Dallas council should skip the debate, admit its errors, and immediately rescind its amendments dealing with them, if it all, next year.
A Good Addition to the Westminster Approach
In my most recent blog post, I wrote that one of the weaknesses of the Westminster approach to campaign finance was that it did nothing about campaign contributions made after a matter involving the contributor had been voted on. What has been happening in Dallas shows a good way the contributor-official relationship can be dealt with after a matter benefitting a contributor is over.
After all, in terms of the appearance of impropriety, there is no difference between rewarding an official before the fact and rewarding an official after the fact. And there's no reason to make life easier for untrusting people, that is, those who don't trust officials to come through for them and, therefore, wait until after the vote to give their reward.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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