The Revolving Door Between Board Membershp and a Job Approved by the Board
One kind of revolving door that is often ignored is the move from
elected or appointed board or commission membership and a paid
position that is approved by and under the direction of the same
board or commission. It makes it look as if the board member were
using her position to get herself a nice job, and exclude others. It
also puts the board members in the conflicted position of overseeing
a former colleague, who might very well be seen to have made a deal
with them that would give them something in return for their
approval. Controversial decisions down the road will be questioned
not just on the basis of policy, but also on the basis of
preferential treatment toward the administrator or the
administrator's failure to stand up to the board's majority that had
approved her hiring.<br>
<br>
It is just this sort of revolving door situation that became
controversial last week in Rhode Island. According to <a href="http://www.providencejournal.com/breaking-news/content/20130715-mancuso…; target="”_blank”">an
article in the Providence <i>Journal</i></a>, the chair of the state's
Board of Education was nominated by the governor to be the interim
commissioner of higher education (salary of about $200,000), a
position that must be approved and supervised by the board of ed.<br>
<br>
There is a rule in Rhode Island (where ethics laws apply to both
state and local officials) that prohibits this sort of appointment
unless the state ethics commission gives a waiver based on
"substantial hardship to the board or municipality":<blockquote>
§36-14-5006. <b>Employment from Own Board</b>. No elected or appointed official may accept any
appointment or election that requires approval by the body of which
he or she is or was a member, to any position which carries with it
any financial benefit or remuneration, until the expiration of one
year after termination of his or membership in or on such body,
unless the Ethics Commission shall give its approval … [and] such
approval shall not be granted unless the Ethics Commission is
satisfied that denial of such employment or position would create a
substantial hardship to the board or municipality.</blockquote>
The <i>Journal</i> article looks at two similar instances when the ethics
commission was asked for a waiver (a term that better describes the
action than the term "approval"). The EC waived the prohibition in a
case where a member of the Commission on Women was named to be its
executive director, because the candidate had special qualifications
and the job vacancy had not attracted many applicants. The job had
been open for six months.<br>
<br>
Yet even here, it should be asked how hard the commission tried.
Perhaps its members wanted this candidate to get the job, and made
little effort to fill the position.<br>
<br>
The EC chose not to waive the prohibition in another case, where a
member of the state's Water Resources Board was named to be its
general manager. The EC found that there was not "a dearth of other
qualified individuals interested in the position.''<br>
<br>
In refusing to provide a waiver, the EC quoted a state supreme court
decision, which said that the purpose of revolving-door provisions is to prevent
"government employees from unfairly profiting from or otherwise
trading upon the contacts, associations and special knowledge that
they acquired."<br>
<br>
<b>The Poor Handling of This Revolving Door Situation</b><br>
On its face, the candidate here does not have a good argument for a
waiver. She is a lawyer with only her recent experience in education. There are a
lot of equally or more qualified people who would likely apply for the position.<br>
<br>
That is why the candidate is making a different argument for
"substantial hardship." According to <a href="http://www.wpri.com/dpp/news/politics/state_politics/mancuso-chafee-was…; target="”_blank”">a
WPRI article</a>, the argument is that the hardship derives from
what would be a lengthy and costly search for a new commissioner.
There are two problems with this argument. One is that it was known
for a long time that the current interim commissioner's term was
coming to an end. The search should have started months ago. Two is
that this argument could be used in every situation. It's always a
pain to do a search or bid out a contract. But this pain is
considered worth the bother, because the alternative opens the way
for ethical misconduct and undermines trust in government.<br>
<br>
Even worse than making a weak argument such as this was the
scheduling of the announcement for Friday afternoon (see <a href="http://www.ri.gov/press/view/19812" target="”_blank”">the press release</a>)
when the board of education was to meet on Monday to approve the
appointment. If not for Common Cause Rhode Island, it is likely that
the appointment would have been made without seeking a waiver from
the EC (as it is, the board of ed chose not to consider the appointment). What appears to be an attempt to sneak past the law, even if it was not, should
cause the candidate to take her name out of contention.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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