In NJ, Large Campaign Contributors Have a Conflicted Relationship

Good news:  Westminster is not alone. No, I am not referring to
the British Parliament or the New York dog show. I am referring to the
Westminster, CO law that says that a campaign contributor has a relationship with the recipient of a sizeable campaign contribution
that gives rise to a conflict of interest and requires the recipient's withdrawal from participation
in any matter involving the contributor (see <a href="http://www.cityethics.org/node/471&quot; target="”_blank”">my blog post</a> on what I
call the Westminster Approach).<br>
<br>
It has been pointed out to me that New Jersey has a similar rule. In
fact, it is not a law, but <a href="http://www.nj.gov/ethics/statutes/rules/index.html&quot; target="”_blank”">a rule of
the state ethics commission,</a> and it only applies to state officials.
§19:61-7.4(c) states that:<ul>

A State official is required to recuse himself or herself from an
official
matter that involves any individual, association, corporation or other
entity
from which the State official received a campaign contribution,
individually or
in the aggregate, in an amount required to be reported by N.J.A.C.
19:25-10 [that is, $300].
Recusal is required regardless of whether the State official is elected
to the
office or position associated with the campaign contribution. The
recusal shall
remain in effect until the expiration of the term of office which the
State
official was seeking when the contribution was made.</ul>

The directness of the Westminster-Jersey approach is admirable. It goes
straight to why campaign finance is part of government ethics: 
it's really about conflicts of interest. Beyond disclosure, campaign finance
laws tend to focus on restricting campaign contributions, an indirect approach
that is becoming increasingly problematic every day.<br>
<br>
The Westminster-Jersey approach does not stand in the way of the First
Amendment, at least if you don't subscribe to the idea that it was
meant to protect officials' right to appear corrupt when they vote.
This approach allows citizens, even corporations, to give whatever they
want to whomever they want, they just can't have their cake and eat it,
too (that expression, in its correct, reverse form, long predates our
founding fathers, but I'm sure they embraced it).<br>
<br>
<b>How It Works</b><br>
How does this rule work? When a matter comes
before an elected official that might benefit, directly or indirectly,
an individual or entity that recently gave that official one or more sizeable
campaign contributions, then the elected
official must withdraw from participation in that matter.<br>
<br>
If the official does not recognize or disclose the conflict, anyone can point out
that the official received the contribution(s) and, if the official
refuses to withdraw, a complaint could be filed (a complaint could even
be filed without first pointing this out, but an official might argue that he
was not aware of the contribution(s)). In a board situation, the
other board members could vote that the official withdraw; in other
situations, a supervisor could require withdrawal.<br>
<br>
<b>Limitations of This Approach</b><br>
The approach does have its limitations. For example, there
would be no conflict if a contribution were made to the official the
day after the vote. <br>
<br>
In addition, an individual or entity that knows it will have business
before a council could give large contributions to all council members, if they
run at the same time, and then, according to the Rule of Necessity,
they all would be able to vote. Or contributions could be made to
enough candidates that oppose a contract or project, so that the contract or project goes through.<br>
<br>
In other words, like almost any government ethics law, this one too can
be gamed. But I think it would backfire on the contractor, developer,
or whatever when the ruse came out. And it would be hard to hide. So
although it seems like a serious loophole, one use of it would probably create a scandal and make it hard for anyone else to try.<br>
<br>
<b>Seek Advice</b><br>
There's another rule in §19:61-7.4 that I was happy to see:<ul>

An
incompatible financial or personal interest may exist in other
situations which are not clearly within the provisions of (d) and (e)
above,
depending on the totality of the circumstances. A State official should
contact
his or her agency ethics liaison officer or the Commission for guidance
in such
cases.</ul>

This is the kind of rule that does not generally appear in ethics
codes, but should appear somewhere. It acknowledges the limitations of
ethics rules, and the fact that ethics and officials' obligations go
beyond the words in a law. And it makes it clear how important ethics
advice is. Actually, seeking ethics advice should be Rule No. 1.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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