EC Jurisdiction Over Agency Procurement and Contractors
How much jurisdiction need a government ethics program have over
procurement matters when there is a procurement program dealing with
them? This question, common to all cities and counties, is being
asked in Honolulu, with respect to the Honolulu
Authority for Rapid Transportation (HART), which will be
soon awarding about a billion dollars in contracts.<br>
<br>
According to <a href="http://www.civilbeat.com/articles/2014/05/02/21972-honolulu-ethics-comm…; target="”_blank”">an
article Friday in Honolulu <i>Civil Beat</i></a>, Honolulu's ethics
commission "is worried that there isn't enough government oversight
to ensure that private companies aren't given sweetheart deals."
According to the EC, in a letter to the mayor and council, there has been an increasing number of
complaints about contractors relating to “unauthorized access to
confidential city information, nepotism, and use of taxpayer
dollars for political purposes." The problem is exacerbated by the
fact that HART is an independent authority, over which the EC does
not clearly have jurisdiction, even though the authority pays its contractors
with city taxpayer funds.<br>
<br>
For example, <i>Civil Beat</i> wrote an article a few months ago
alleging that </span>HART's deputy executive director had recently been a vice president of a
company that won a $46.1 million engineering contract. It was not
clear what role that individual played in the award process (HART
says he had nothing to do with it), but he might have had access
to confidential information that could have helped his employer.
But the EC was not able to investigate. This left HART
self-enforcing the rules.<br>
<br>
Not only the EC is concerned. An auditor's report said that
"consultants have significant influence over rail project
operations and how taxpayer dollars are spent, but have minimal
accountability for their actions and decisions."<br>
<br>
A professor who specializes in procurement law told <i>Civil Beat</i> that EC
jurisdiction over HART contractors would be duplication, because
state procurement laws already apply, and companies that violate
these laws can receive negative performance ratings or be
temporarily prohibited from receiving future government contracts.<br>
<br>
But procurement laws do not cover all the same areas as EC laws,
enforcement is probably more complex and infrequent, and state
authorities are not as interested in the misuse of city funds and
information as a city EC is.<br>
<br>
For example, according to the article, a public relations
consultant paid more than half a million dollars by HART
repeatedly attacked a mayoral candidate who opposed the rail
project. In 2012, the new agency head eliminated his contract, but
otherwise this sort of conduct might have continued, because no
one but the agency itself, in whose interest the consultant was
acting, had authority over the consultant.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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