Officials Soliciting Charitable Contributions from People Doing Business with Local Government

Officials soliciting charitable contributions from those doing business
before them is unethical conduct too many ethics codes allow, often
expressly. Miami-Dade County has in its ethics code what appears at
first to be a very reasonable exception to the definition of a gift:<br>
<ul>
§2-11.1(2)(2)(g) Gifts solicited by Commissioners on behalf of any
nonprofit organization for use solely by that organization where
neither the Commissioner nor his or her staff receives any compensation
as a result of the solicitation. ... As used in this subsection,
“compensation” means any money, gift, favor, political contribution,
thing of value or other financial benefit.<br>
</ul>
There are several problems here, which have forced a criminal trial of
a city commissioner who allegedly asked someone with business before
her body to give a $25,000 contribution to a charity she was involved
with, according to <a href="http://www.miamiherald.com/2010/04/15/v-fullstory/1582182/miami-develop…; target="”_blank”">an
article in yesterday's Miami <i>Herald</i></a>.<br>
<br>

Most important, this exception makes it appear that local legislators
do not understand that requests for contributions to their favorite
charities, although not of direct financial benefit to the requesting
official, is in fact a misuse of office to get a desired result. It's
pay-to-play with a velvet hand extended.<br>
<br>
The exception only deals with the situation where the commissioner or
staff member is soliciting for the charity on a commission basis. And
yet would it be wrong for a commissioner to work as a charity
solicitor, as long as she did not approach anyone doing business with or working for
the city?<br>
<br>
This points to a second major problem:  Miami-Dade's gift
provision refers to gifts from anyone, not just from people with
interests in the city (see the <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC35…; target="”_blank”">City
Ethics Model Code provision</a> for language that applies only to those
doing business with the city). When you define a gift more narrowly,
there is no reason to make an exception for charitable contributions,
because officials should not be soliciting <span>anything</span> from those doing business
with the city, especially with their own body or agency.<br>
<br>
The final problem with the Miami-Dade exception is that its definition
of "compensation" is limited to direct financial benefits. But
officials are just as likely to solicit gifts for others, especially
family members and their favorite charities. And there are also
important favors that can be asked, such as getting a child into a
school, or giving someone a valuable job recommendation. Not every gift
is a direct financial benefit, or a financial benefit at all.<br>
<br>
The result of the weaknesses of the Miami-Dade ethics code is that when
a commissioner was caught (allegedly) soliciting a large charitable
contribution from a developer, it required a bribery trial, including
proof that the solicitation and gift were intended to get particular
results. This is very difficult to prove, and thankfully is not an issue in ethics
enforcement.<br>
<br>
The gift was made in 2006. Had this been an ethics matter, it would
have been dealt with years ago, and at far less expense. In fact, had the ethics code anticipated this sort of problem, the gift would most likely not have been solicited.<br>
<br>
In the criminal trial, as it turns out, the developer testified that the commissioner
said nothing expressly about a quid pro quo. Here's the testimony:<br>
<ul>
"The fact that you had a matter pending in front of the commission
at that particular moment, was that raised at all by the person you
talked to in the commissioner's office?'' Miami-Dade prosecutor Richard
Scruggs asked.<br>
<br>
"Not at all, no."<br>
<br>
"But yet, I could assume it would be fair to say that it must have been
on your mind, because you turned around and called [partner] Mr.
[Ricardo] Glas . . . It was actually his project,'' Scruggs asked.<br>
<br>
"I'm ashamed to tell you that, yes,'' Codina replied. "I'm ashamed
to tell you while I gave her the benefit of the doubt, it was not one
of my finer moments, Mr. Scruggs.''<br>
</ul>
The
article continues with the developer's testimony: "Codina said he made
the donation to a charity affiliated with [the commissioner] because it
appeared to be a good cause -- and because he was loathe to turn down
the request. 'I didn't see a reason to poke her in the eye and tell her
no,' he said."<br>
<br>
This is how pay-to-play works. There doesn't have to be an express quid
pro quo. Everyone knows the rules. And it's not about making the gift,
it's about the double negative:  there might be a serious cost to
not making the gift. The benefit of a charitable gift is that you can
tell yourself it's for a good cause, even when you know it's
effectively a bribe.<br>
<br>
Indirect, unexpressed bribes are hard to prove in court, which is why
they are popular. But indirect, unexpressed bribes can be prohibited by
ethics codes.<br>
<br>
As for favorite charities, they usually are legitimate, but in this
case, it appears that the charity was very close not only to the
commissioner's heart, but to the rest of her, as well. According to the
<i>Herald</i> article, the charity wasn't formed until six months after the
developer made his contribution, and the charity was run through the
commissioner's commission office. And $2,500 of the developer's money
went toward an "elegant cocktail party" for the commissioner.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---