Ethics Commissions Need to Look at the Reasons Behind Gift Rules

The Washington state Legislative Ethics Board has been discussing how many meals a state legislator should be able to accept from lobbyists and lobbyist-employers under the "infrequent" meals exception in the state ethics code. The exception allows legislators to accept food and beverage when their attendance is "related to the performance of official duties" on "infrequent occasions." The board has apparently never defined "infrequent."

It's About Perceptions
This discussion has some resemblance to the discussion of how many angels can fit on the end of a pin. Once you believe that one angel can fit on a pin, where do you stop? This is why many in the government ethics world (including me) believe that officials should not be accepting any meals from those seeking special benefits from their government. It isn't because any particular official can be "bought" by the price of a meal. It's about perceptions.

After all, the basic Washington state gift rule prohibits any gift "if it could be reasonably expected that [it] would influence the vote, action, or judgment of the officer or employee, or be considered as part of a reward for action or inaction." I don't think it is possible for an official to convince the public that a restricted source wants to meet with her for any reason other than to influence or reward her vote, action, or judgment.

The proposals made to the ethics board (attached; see below) have a range from 3 or 5 meals per year to 52 per year. According to an article in the Capitol Record, a former mayor of the state capital recommended an outright ban on accepting meals from lobbyists. He argued that this would take the pressure off of lawmakers. “You can say, ‘It’s illegal, I can’t do that, that’s off the table.’ It’s clean and everybody understands it.” This is another benefit of a total gift ban. But the ethics board considers this too infrequent to be "infrequent."

Reporting
The other principal issue being discussed is the reporting of such gifts. The proposals here are more consistent. Three of the four proposers want to require the reporting of any meal costing $5 or more (the fifth wants a $25 floor; the current floor is $50 over a year). The mayor's informal proposal would require no reporting, because there would be no meals.

The most important question here is, Does anyone really care? Will it make any difference to the public's perceptions and trust if the top number is one meal a month or one meal a week? Will it make any difference if all $5 or $25 meals are reported? After all, the lobbyists have to report the meals, so there already is a report. Are these reports making people trust their officials more?

This brings us to the report that led to the ethics complaint that led to the ethics board's discussion. A 2013 report by Associated Press and Northwest Public Radio about the numbers of meals state legislators were accepting from lobbyists was, in fact, based on lobbyists' reports. It found that five well-placed senators (all from the same political party) were accepting an unusual number of meals from lobbyists. In the first four months of last year, one had accepted 62 meals, or one every other day.

The Pay-to-Play Incentive
Also noteworthy is the fact that these senators receive $90 a day in taxpayer funded per diem payments. If they get a free lunch or dinner, they get to keep the money. Therefore, taking meals from lobbyists is not only a way for lobbyists to get access to and develop relationships with legislators. It is also a way for legislators to put money in their wallets. This is an incentive for them to engage in pay to play:  if you want access to me, you've got to take me out to dinner. This is not the sort of incentive one wants from a gift provision.

This is why one of the four proposals to the ethics board calls for a deduction from per diem payments of the value of all meals accepted by legislators from lobbyists. This at least deals with the pay-to-play incentive.

But then why not simply require legislators to pay for all their meals with lobbyists out their per diems, as the former mayor informally proposed? If it involves "the performance of official duties," as the "infrequent" exception requires, then the taxpayer should pay.

It's Also About Relationships
All the proposals focus too much on gifts, and too little on the underlying reason for gift rules. These proposals allow legislators to say, as one state rep told the ethics board, that he is "offended at the notion he could be 'influenced by a $12 hamburger,'" as the Bellevue Reporter reported last week.

A state rep who does not accept free meals put it well: “If you have this friendly, comfortably thing where you know somebody’s been buying you a lot of meals, do you feel a direct obligation for a vote? No, but do you feel a personal relationship and a fondness that may be a little out of kilter? You probably do, but you don’t even know it. That’s how it works.” In other words, it's not only about perceptions, it's also about relationships. Real live personal relationships between people seeking special benefits and the people they're seeking them from.

These relationships are not just about buying meals. They're about having meals (and golf games and trips, etc.) together. According to an article in The Olympian last week, a lobbyist told the ethics board "that he and his wife, also a lobbyist, find it important to have time to explain issues to a lawmaker. Sometimes they do the cooking themselves to keep down costs and provide that time to talk with lawmakers." So the cost of the gift is less, but the legislators get to visit the lobbyists' home and develop an even cozier relationship.

They're not going to the homes of ordinary constituents, developing relationships with people who are seeking nothing from their representatives, but are willing to provide a free meal. It's not about free meals, it's about relationships. It's not about the frequency of meals, it's about the frequency and quality of contacts.

It's notable that the legislators quoted in the 2013 report did not even know about the "infrequent" meals exception. They thought that having frequent meals with lobbyists was fine. The leading meal-taker is quoted as saying, “I guess I’ve never really thought about it in that fashion because I’m viewing it as a chance to work on specific issues and work to get good legislation done.” Certainly some work got done, but was it necessary for the chair of the energy committee to have 14 meals in 4 months with the lobbyist for the regional petroleum association? Can't that legislative work be done in the office?

No good rule will be agreed upon until the ethics board acknowledges what it really is that is problematic about "frequent" meals with lobbyists and their employers, that is, with anyone seeking special benefits from the government. Even if legislators pay out of their per diems and everything is reported, should there be unlimited personal meetings? Will this satisfy the public that lobbyists are not being given special access, developing personal relationships with legislators, and being given preferential treatment? If not, what are ethics rules for?

Robert Wechsler
Director of Research-Retired, City Ethics

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