Problems Arising from a Bribery Case in Jefferson Parish, LA
Several interesting issues arise from a recent ethics case in
Jefferson Parish, a suburb of New Orleans with about 430,000 people.
According to <a href="http://theadvocate.com/news/6470612-123/jeff-ethics-panel-declines-to&q…; target="”_blank”">an
article in the <i>Advocate</i> yesterday</a>, an employee of a large
parish contractor sent the following e-mail to a council member's aide, who forwarded it to the council member:<blockquote>
“I would like to schedule a meeting with Councilman Spears to
meet with Jim Martin, Vice President of GEC to discuss business
development in District 3. Would a campaign contribution make the
meet happen any quicker?"</blockquote>
<b>The Language of "Transaction"</b><br>
The first issue is whether this e-mail constitutes an ethics violation. Jefferson Parish prohibits
contractors from knowingly participating in "a transaction" that
would cause an official to be in violation of the local or state
ethics code.<br>
<br>
But no transaction occurred. There was only a question about how
things work, which could reasonably be construed as a conditional offer ("I will give you
a contribution if it would help"), but not as a "transaction," a term that is not defined.<br>
<br>
There is no need to speak of "transactions." Nor is there any need to limit such language to contractors. The City Ethics Model Code has much broader and more inclusive language, "No one may, directly or indirectly, induce, encourage, or aid anyone to violate any provision of this code."<br>
<br>
<b>The Acts of a Contractor's Employees</b><br>
The second issue is whether the employee's offer could put the
contractor in violation of the ethics code. The parish's governmental
ethics compliance and audit committee (a committee of the council)
decided that it did not.<br>
<br>
The
contractor said that the employee "acted without
instruction or permission in this matter,” and it quickly fired
her. The parish attorney, who presented the case for the parish,
said that only the one employee was involved (one wonders how she knew this).<br>
<br>
But the ethics code is clear about whether the act of an employee
is considered the act of her employer. It defines "contractor" as
including
"any principal, owner, employee, lobbyist or agent of any such
person or business." In other words, it is not for the parish to
determine whether an employee was acting on her own or on behalf
of her employer. An employee is deemed to be acting on behalf of
her employer. Any other approach requires an ethics commission to find evidence of at least knowledge and possibly approval, which is difficult.<br>
<br>
<b>Limited and Severe Sanctions</b><br>
Why would the ethics committee ignore the definition of "contractor"? Because of the severe sanctions set out in the contractor ethics code. There are
only two sanctions:</span> contract termination and a
two-year disqualification from getting further contracts
(accompanied by a $10,000 fine). In other words, the council
members sitting as a tribunal were concerned with the harm to the
parish of suddenly terminating important construction contracts and
disqualifying a major contractor for two years.<br>
<br>
The ethics committee should not have been put in this difficult
position. It should have been able to determine that there was a
violation, but that a sizeable fine would be better for the parish
than termination and disqualification.<br>
<br>
It's good to have tough sanctions, but there needs to be
discretion that does not require a finding of no violation when
the public clearly sees the e-mail as offering a bribe.<br>
<br>
<b>Bribery and an Ethics Program</b><br>
Which brings us to the next issue. What occurred was bribery rather than an ethics violation. The problem is that Jefferson Parish's gift ban does not follow the best practice of banning gifts from restricted sources, such as contractors. Instead, it prohibits gifts in certain situations: the receipt of compensation and finder's fees, the receipt of compensation for services rendered, and the rendering of assistance
to certain persons for compensation. This takes the ethics code into bribery territory, and bribery is a criminal offense.<br>
<br>
It is better to leave bribery cases such as this to the criminal authorities (there is a criminal investigation, as well). It is better to try to prevent such situations by prohibiting contractors from making contributions at all.<br>
<br>
<b>Contractor Campaign Contributions</b><br>
The fact is, it looks to the public as if there has been
bribery going on for some time. According to the <i>Advocate</i> article,
the contractor gave about $17,700 in campaign contributions to
parish elected officials from 2009 to 2012. That included a $500
donation to the council member involved in this matter, as
recently as August 2012.<br>
<br>
This suggests that it's okay for a contractor to give large
campaign contributions as long as one of its employees is not so
stupid as to suggest in writing that such contributions are intended
to get special treatment. If a contribution can be considered an
illegal gift under such circumstances, then it should not be
allowed under any circumstances. The public reasonably believes that contractors who give large contributions expect something in return or are paying to play. Prohibiting only those situations where tit-for-tat bribery can be proved, and then doing nothing about even those instances, is not a good way for an ethics program to win the public's trust. Ethics programs are supposed to prevent misconduct before it descends to the level of a crime.<br>
<br>
<b>An Enforcement Body of Officials</b><br>
Contractor violations should not be dealt
with by a committee of high-level officials. As long as
council members are permitted to receive campaign contributions
from and be lobbied by contractors, they are in no position to be
seen as making independent decisions in the public interest with
respect to contractor violations. In fact, in this very case the
council member who received the e-mail was a member of the ethics
committee hearing the case. Fortunately, he withdrew from the
matter. But the matter was still heard by his colleagues, and
their decision to find no violation could be seen as being easy on
a major campaign contributor.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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