An Advisory Opinion Concerning Constituent Services

On August 29, the D.C. Board of Ethics and Government Accountability issued an advisory opinion on the important and far too overlooked topic of constituent services (attached; see below). The issuing of advisory opinions that cover more than a very specific set of facts, what I call "general advisory opinions," is itself very valuable (see the section of my book Local Government Ethics Programs on general advisory opinions).

This particular general advisory opinion is useful in many ways, especially in its General Considerations and Illustrative Scenarios sections. But it also has a few weaknesses. Critiquing them will help not only the new D.C. ethics board, but also other ethics commissions, anticipate problems and consider solutions to them.

Constituent Services
Constituent services are an unusual aspect of a legislator's role. Although they are considered to be an important part of a legislator's obligations to the public, they are actually something else. As the U.S. Supreme Court recognized in its opinion in the case U.S. v. Brewster, 408 U.S. 501, 512 (1972), constituent services "are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the Court in prior cases."

Considered legitimate legislative conduct, constituent services are often excepted from preferential treatment and other government ethics provisions, as they are in the District of Columbia. But it is important to acknowledge that a principal defense to accusations of preferential treatment is that the official was just performing constituent services. Looked at more closely, the services often went to someone with a special relationship to the official (sometimes a large campaign contributor) and went beyond the usual help with the provision of ordinary government services. The problems arise when such "services" are provided in areas such as land use, procurement, licensing, and grant-making. This is where there is the greatest likelihood that such services may be seen as repaying a debt rather than as simply providing help to constituents having problems working their way through the bureaucracy.

A big problem with the provision of constituent services is that a legislator often does not know how legitimate a constituents' claims are. Legislators have an obligation to check out constituents' factual claims, especially when the stakes are high. As U.S. Senator Paul Douglas once said, a legislator "should not immediately conclude the constituent is always right and the administrators always wrong.”

The legitimacy of constituents' claims is especially problematic when a legislator sees her role as an advocate rather than a representative. Dennis F. Thompson wrote in his book Ethics in Congress (1995), “To the extent that members see themselves as advocates, they may not recognize ethical problems in the way they intervene. They take their role to be like that of a lawyer, whose duty, they assume, is to fight for the client without regard to the merits of the case.”

A council member is not a constituent's attorney; she is only the constituent's representative. And she is also the representative for the rest of her district, city, or county. Therefore, she has to determine whether it is in the public interest to pursue the claim.

Another important issue with constituent services, but one that is not part of government ethics (although it is sometimes handled by ethics programs), relates to the division of powers between the legislative and executive branches, as well as between a legislative body and boards and commissions, whose work is often quasi-judicial in nature. When legislators get involved in executive and board matters, they need to respect the division of powers while fulfilling their obligation to the public to make sure that matters are being taken care of efficiently and fairly elsewhere in the government.

The D.C. opinion talks about real and implied threats of retaliation by legislators against others in the government. Intimidation against citizens and subordinates is often a government ethics problem, but in this instance it is a division of powers problem that needs to be worked out between the council and the executive. In council-manager forms of government, where the executive manager is chosen by the council, this can be especially problematic. But even without accountability based on direct election by the community, a manager or or a board chair needs to stand up to council members who overreach their authority.

Recommendations for Dealing with Constituent Requests
The heart of this advisory opinion is a list of seven general considerations "which elected officials should weigh when faced with any constituent's request for assistance." The opinion's practical approach here provides useful guidance. The "general considerations" are listed below, in a mix of the opinion's language and my own. Every ethics commission should seriously consider drafting a general advisory opinion that makes similar recommendations to local legislators for dealing with constituent requests.

1. Factor out self-interest, one's own and others'. Remember that furthering the public interest is the goal even when a particular constituent requests help in a particular matter.

2. Without personal knowledge of the situation, present factual contentions as those of the constituent, not as one's own.

3. Document all constituent requests and the action take in response. To the extent possible, put the entire transaction in writing.

4. Have written rules for constituent service transactions and train staff in these rules, so that such services are provided consistently as possible.

5. Strive for "power parity" in all constituent service interactions. That is, interact only with agency heads, board chairs, and general counsel. Assign staff to deal with lower-level officials. Doing this means less potential for intimidation, real or perceived.

6. Avoid any hint of a carrot or a stick.

7. Avoid any appearance that service is being provided to a constituent due to any possible benefit provided (including campaign contributions) or to party affiliation, prior employment, or a personal or business relationship. With respect to campaign contributions, considerations include amounts, frequency, and proximity in time.

Scenarios and Advice
The general considerations are followed by seven pages of scenarios, which provide concrete pictures of how elected officials should handle particular constituent service situations. On the whole, these scenarios and the advice that goes along with them are excellent.

However, I differ with some of the advice, for example, the advice that goes along with the scenario A2, where a council member contacts the Zoning Commission for a status report on a variance matter that involves a constituent. It's not that the advice is wrong. It's that it accepts a situation that, although common, is not a best practice. A footnote in the opinion says that "these examples are meant to demonstrate ... 'best practices.'" This is a situation where I think the opinion should have pointed out the best practice.

The scenario is followed by the sentence, "If it is customary for the Councilmember to contact the Commission on routine matters, then her doing so in this example can be presumed to be appropriate conduct." This advice is based on language in the council's code of conduct, "The performance of usual and customary constituent services, without additional compensation, is not prohibited."

The first issue here is, does this mean "usual and customary" to the particular council member, or to all council members? Although I agree with the opinion's fourth general consideration, should each council member have her own constituent service rules, and are they okay just because she consistently follows them? This is apparently what is done in the District of Columbia. But it is preferable for a council to have written rules that all its members follow.

With such rules, staff can be trained together to follow these rules. Having such rules make it easier to train, easier to be consistent, easier to provide advice, easier for staff to provide oversight when other council members are involved, and easier for the rest of the government to know what to expect when it deals with council members and their staff. If each council member has his own rules, even if they are in writing, how is an agency employee or a board member to be able to keep track of what it takes for a council member or staff to cross the line from acceptable conduct to unacceptable conduct?

I also differed with the advice that accompanies scenario E6. This scenario involves a company that tells a council member that a competitor, which is a city contractor, has violated a local law. This leads the council member to request an investigation by the agency. The contractor claims that the investigation stemmed from political pressure instigated by its competitor.

The opinion states that there is nothing "readily in the public interest to justify Councilmember's involvement." It suggests that the council member ask himself whether requesting the investigation would appear to be seen as in the competitor's favor.

It's true that appearances matter, and an investigation based on a competitor's tip should be kept confidential until there is confirmation of the allegations. But it is also true that many problems involving contractors come to light from tips made by their competitors, especially losing bidders. These tips should not be ignored just because they may result in a benefit to the one providing the tip.

What I don't understand here, as in many instances, is why the council member should be involved at all. A company can make a tip directly to the agency. A council member should insist that this be done, and that he be contacted only if the agency refuses to investigate. But even here, this would be less a constituent issue than a policy issue regarding the investigation of tips made by competing companies. This more general problem would better be dealt with by a council committee than by an individual council member in whose district the competitor happens to be based.

Centralized Constituent Services
This brings me to a bigger issue:  whether constituent services, beyond minor help given to a person who is not even a prospective campaign contributor, should ever be dealt with by individual legislators. This question is rarely asked. And yet local legislators are elected to determine policy, not to deal with nitty-gritty matters. This is what administrators are supposed to do.

The provision of constituent services allows local legislators to interfere individually in administrative matters and to justify preferential treatment by simply saying they were helping a constituent, even if they would most likely not have given so much attention to the needs of an ordinary citizen. Considering how important constituent services are to re-election, this area of government blurs the line between governance and election campaigns. Also, those who live in the districts of more senior legislators tend to get better service than those who live in the districts of junior legislators. This is unfairness in support of power and incumbency.

When you question the handling of constituent services, it seems more reasonable for them to be provided by an office in the council, by an ombudsman or, in a smaller jurisdiction, by the city or county manager or chief administrator. This would lead not only to better service overall, but also to fewer legislative aides who are effectively working for re-election campaigns and making government service appear as part of getting re-elected. In fact, Dennis Thompson recommended just such an office for Congress in his seminal book Ethics in Congress (1995)

Relevant Advisory Opinions Elsewhere
I learned two things by looking through the online advisory opinions of local and state ethics commissions or opinions about constituent services. One is that few ECs make their opinions searchable. Some do not even provide an index and just have dozens of numbered PDFs that mean nothing to anyone but EC staff. This is inexcusable.

All an EC needs to do is make one big file of its opinions (HTML rather than the usual PDF, so that readers don't have to download a huge file), which would then make all the opinions searchable. It is easy to update such a file once a month or so.

Two is that there are very few opinions that touch on the provision of constituent services, even though this area gives rise to some important and difficult conflict situations. In March 2013, Philadelphia's EC gave an opinion regarding the legal representation of constituents and the referral of constituents to attorneys (attached; see below). While the opinion itself says little about constituent services, there is a memo attached to it that has a valuable section on such services.

It is worth noting that the opinion and memo have been made public only because the council employee who requested it waived her right to keep them confidential. It would have been a crime to keep this information secret, and no harm could have come to anyone by making it public.

There is an excellent 2013 Massachusetts advisory opinion on officials making recommendations for employment. This is an issue that is also dealt with in the D.C. opinion, but here it is dealt with at more length.

It is worth noting that Massachusetts advisory opinions are public and are included on the EC website under "educational materials." If all officials had the sense to recognize advisory opinions as educational, rather than possibly harmful to them personally, there would be vastly more advisory opinions available for local officials, as well as other ECs, to read. At least if they were made searchable.

Other opinions would certainly have been useful to the drafting of the D.C. opinion, which mentions not a single advisory opinion. Thankfully, D.C. opinions are searchable as part of a publications search page.

Accessibility of Advisory Opinions
One problem with the D.C. constituent services advisory opinion is that it is unlikely that any official or employee other than a lawyer will read it. The most valuable parts of the opinion start on page 8 of 18. Before that, the reader needs to wade through five legalese sections, with twenty footnotes.

But the most problematic footnote is no. 32, on page 10, which contains the most important words of the opinion:

[F]ailure to strictly adhere to certain of these recommendations may not in every case rise to the level of a Code of Conduct violation. Nonetheless, it is highly advisable that elected officials follow these practices in order to avoid allegations of ethical misconduct and potential sanctions where best practices standards do, in fact, intersect with minimal ethical standards. In case of doubt about which way to proceed, the best practice would be to seek advice from BEGA. The examples herein are hypothetical. Only with specific, actual facts can BEGA provide "safe-harbor" advice (advice that, if followed, protects the inquirer from sanctions) under the Ethics Act.

It's true that the opinion's conclusion, if anyone gets that far, also encourages elected officials to seek advice (but why not their staff?). But the best statement of this appears in footnote 32. This is certainly not where it belongs.

The Philadelphia approach (attached; see below) — a four-page advisory opinion, without footnotes, followed by a legalese memo — makes an advisory opinion much more accessible. The D.C. opinion, in this case, had to be longer, due to the many scenarios, but they could also have been included in a separate, but attached document. The opinion could simply say that this is a general opinion and that officials should seek advice when faced with specific requests for constituent services, state the question, define constituent services in a simple manner, provide the relevant ethics provisions and how they relate, go through the considerations, and then reiterate the need to ask for advice. A list of scenarios would follow, and then a memo discussing the issues with lawyers in mind.

Blind Spots and Institutional Corruption
The D.C. opinion quotes from Dennis F. Thompson's book Ethics in Congress, but only once. He had a lot more to say about constituent services in this book, beyond what I cite above (see my 2011 post on this for more).

For example, Thompson noted a serious blind spot legislators have with respect to the provision of constituent services:  "The culture of Congress is so strongly imbued with the ideal of serving all constituents equally, the members find it difficult to acknowledge any favoritism in such service. They believe, with evident sincerity, that they serve all equally."

Thompson also looked at constituent services in terms of institutional corruption. For an application of Thompson's ideas on institutional corruption to a constituent services scenario, see another blog post of mine from 2011.

Robert Wechsler
Director of Research-Retired, City Ethics

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