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Staff Members and the Revolving Door
Wednesday, September 29th, 2010
Robert Wechsler
Update: October 15, 2010 (see below)
Decision-makers are given too much credit. Most individuals who vote on government matters are non-professionals who are paid little or nothing, and who rarely focus on the matters before their body. They are, therefore, very dependent on staff members who are professionally trained and who are paid to focus on the matters before the body.
And yet, according to an article in the Indianapolis Star, the Indiana State Ethics Commission recently decided that the general counsel, chief legal adviser, and chief administrative law judge to the Indiana Utility Regulatory Commission (all one person) was allowed to take a job with the regulatory division of the state's largest electric supplier days after leaving his job with the IURC.
There is a problem with the language of the rule on post-employment restrictions:
This ignores the principal purpose of post-employment restrictions: the appearance that a government official or employee is being rewarded for services rendered to the employer while in office. Yes, it is also important that the official or employee not be in a position to use confidential information to help the employer, but simply keeping the official or employee out of matters in which he was involved does not ensure this.
The local Sierra Club's conservation program coordinator told the Star, "I think that decision casts a shadow over the ethics commission." I agree. When a government official asks for advice regarding how an ethics code provision affects his situation, I believe that the provision should not be read as narrowly as in an enforcement action.
It would be acceptable for an EC to recognize that those with important input into a decision, especially at the highest level, are seen by the public as no different from those with a vote. I myself am the administrator of a public campaign financing program, and although I have no vote, I have important input in every determination the board makes. It would be seriously inappropriate for me to leave my position to become an adviser to a campaign over which the board has jurisdiction, or even to work for any important figure in any of the campaigns. It would put into question the advice I gave the board at least in the last election period, and the decisions the board made on the basis of my advice.
It's worth noting that a DeKalb County (GA) Housing Authority member has recently taken a position opposite to that of the Indiana ethics code. According to an article in the Atlanta Journal-Constitution this week, he said that "the authority's policy against accepting gratuities doesn't even apply to him. 'It really doesn't, because there's nothing I can give to anybody' in return for a gratuity, he said. [He] reasons that it's the authority's staff that negotiate the details of business transactions with vendors and development partners. Even if those deals can't go through without his vote, he doesn't believe his vote is worth anything."
Of course, he's wrong about himself, but he's right about the housing authority staff.
I have added a clause to the City Ethics Model Code revolving door provision (the words "or based on advice or information supplied by" in 11(e)) to make it clear that advisers, researchers, and investigators are, in reality and from the public's point of view, able to materially influence the decision-making process, and often even have greater influence on a decision than any single member of a board.
Update: October 15, 2010
According to an article in yesterday's Indianapolis Star, the state inspector general filed a complaint with the state ethics commission against the former IURC general counsel after an investigation showed that the general counsel "was discussing job prospects with Duke [Energy] weeks before signing an order clearing the way to pass $2.9 billion worth of construction costs at the Edwardsport plant on to consumers."
According to a Star article two days earlier, the general counsel wrote in an e-mail message to the IURC chair, "It was impressive that you did not laugh during the Ethics hearing" on whether he could take a job with the state's largest electric supplier.
Most telling are the last sentences of the article:
Director of Research-Retired, City Ethics
---
Decision-makers are given too much credit. Most individuals who vote on government matters are non-professionals who are paid little or nothing, and who rarely focus on the matters before their body. They are, therefore, very dependent on staff members who are professionally trained and who are paid to focus on the matters before the body.
And yet, according to an article in the Indianapolis Star, the Indiana State Ethics Commission recently decided that the general counsel, chief legal adviser, and chief administrative law judge to the Indiana Utility Regulatory Commission (all one person) was allowed to take a job with the regulatory division of the state's largest electric supplier days after leaving his job with the IURC.
There is a problem with the language of the rule on post-employment restrictions:
-
A former state officer, employee, or special state appointee may not
accept employment or receive compensation ... from an employer if the
former state officer, employee, or special state appointee made a
regulatory or licensing decision ...
This ignores the principal purpose of post-employment restrictions: the appearance that a government official or employee is being rewarded for services rendered to the employer while in office. Yes, it is also important that the official or employee not be in a position to use confidential information to help the employer, but simply keeping the official or employee out of matters in which he was involved does not ensure this.
The local Sierra Club's conservation program coordinator told the Star, "I think that decision casts a shadow over the ethics commission." I agree. When a government official asks for advice regarding how an ethics code provision affects his situation, I believe that the provision should not be read as narrowly as in an enforcement action.
It would be acceptable for an EC to recognize that those with important input into a decision, especially at the highest level, are seen by the public as no different from those with a vote. I myself am the administrator of a public campaign financing program, and although I have no vote, I have important input in every determination the board makes. It would be seriously inappropriate for me to leave my position to become an adviser to a campaign over which the board has jurisdiction, or even to work for any important figure in any of the campaigns. It would put into question the advice I gave the board at least in the last election period, and the decisions the board made on the basis of my advice.
It's worth noting that a DeKalb County (GA) Housing Authority member has recently taken a position opposite to that of the Indiana ethics code. According to an article in the Atlanta Journal-Constitution this week, he said that "the authority's policy against accepting gratuities doesn't even apply to him. 'It really doesn't, because there's nothing I can give to anybody' in return for a gratuity, he said. [He] reasons that it's the authority's staff that negotiate the details of business transactions with vendors and development partners. Even if those deals can't go through without his vote, he doesn't believe his vote is worth anything."
Of course, he's wrong about himself, but he's right about the housing authority staff.
I have added a clause to the City Ethics Model Code revolving door provision (the words "or based on advice or information supplied by" in 11(e)) to make it clear that advisers, researchers, and investigators are, in reality and from the public's point of view, able to materially influence the decision-making process, and often even have greater influence on a decision than any single member of a board.
Update: October 15, 2010
According to an article in yesterday's Indianapolis Star, the state inspector general filed a complaint with the state ethics commission against the former IURC general counsel after an investigation showed that the general counsel "was discussing job prospects with Duke [Energy] weeks before signing an order clearing the way to pass $2.9 billion worth of construction costs at the Edwardsport plant on to consumers."
According to a Star article two days earlier, the general counsel wrote in an e-mail message to the IURC chair, "It was impressive that you did not laugh during the Ethics hearing" on whether he could take a job with the state's largest electric supplier.
Most telling are the last sentences of the article:
-
Citizens Action Coalition, an Indianapolis watchdog group that often fights utility rate increases on behalf of customers, sent a three-page letter to [Governor] Daniels, demanding more answers about the IURC conduct, saying the issue goes well beyond bad judgment of a few people. "This problem is absolutely systemic," Kerwin Olson, the group's program director, said in an interview.
Director of Research-Retired, City Ethics
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