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."<br>
<br>
<b>It's About Perceptions</b><br>
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.<br>
<br>
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.<br>
<br>
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 <a href="http://capitolrecord.tvw.org/2014/04/ethics-board-looks-at-rule-allowin…; target="”_blank”">an
article in the <i>Capitol Record</a>,</i> 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."<br>
<br>
<b>Reporting</b><br>
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.<br>
<br>
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?<br>
<br>
This brings us to the report that led to the ethics complaint that
led to the ethics board's discussion. <a href="http://nwnewsnetwork.org/post/several-washington-lawmakers-eat-frequent…; target="”_blank”">A
2013 report by Associated Press and Northwest Public Radio</a>
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.<br>
<br>
<b>The Pay-to-Play Incentive</b><br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>It's Also About Relationships</b><br>
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 <a href="http://www.bellevuereporter.com/opinion/263892711.html" target="”_blank”">the
Bellevue <i>Reporter</i> reported last week</a>.<br>
<br>
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.<br>
<br>
These relationships are not just about buying meals. They're about
having meals (and golf games and trips, etc.) together. According to
<a href="http://www.theolympian.com/2014/06/17/3186377/legislative-ethics-board-…; target="”_blank”">an
article in <i>The Olympian</i> last week</a>, 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.<br>
<br>
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.<br>
<br>
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?<br>
<br>
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?<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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