Staff Members and the Revolving Door
<b>Update:</b> October 15, 2010 (see below)<br>
<br>
Decision-makers are given too much credit. Most individuals who vote on
government matters are non-professionals who are paid little or
nothing, and who rarely focus on the matters before their body. They
are, therefore, very dependent on staff members who are professionally
trained and who are paid to focus on the matters before the body.<br>
<br>
And yet, according to <a href="http://www.indystar.com/article/20100923/BUSINESS/9230418/Duke-Energy-b…; target="”_blank”">an
article in the Indianapolis <i>Star</i></a>, the <a href="http://www.in.gov/ig/2335.htm" target="”_blank”">Indiana State Ethics Commission</a> recently decided that the general counsel, chief legal adviser, and chief
administrative law judge to the Indiana Utility Regulatory Commission (all one person) was allowed to take a job with the regulatory division of the state's
largest electric supplier days after leaving his job with the IURC.<br>
<br>
There is a problem with the language of the rule on
post-employment restrictions:<ul>
A former state officer, employee, or special state appointee may not
accept employment or receive compensation ... from an employer if the
former state officer, employee, or special state appointee made a
regulatory or licensing decision ...</ul>
If the employee was in a position to investigate, oversee, and make
recommendations regarding the employer, then the employment is okay.
Only actual decision-makers are restricted.<br>
<br>
This ignores the principal purpose of post-employment
restrictions: the appearance that a government official or
employee is being rewarded for services rendered to the employer while
in office. Yes, it is also important that the official or employee not
be in a position to use confidential information to help the employer,
but simply keeping the official or employee out of matters in which he
was involved does not ensure this.<br>
<br>
The local Sierra Club's conservation program coordinator told the <i>Star</i>,
"I think that decision casts a shadow over the ethics commission." I
agree. When a government official asks for advice regarding how an
ethics code provision affects his situation, I believe that the
provision should not be read as narrowly as in an enforcement action.<br>
<br>
It would be acceptable for an EC to recognize that those with important
input into a decision, especially at the highest level, are seen by the
public as no different from those with a vote. I myself am the
administrator of a public campaign financing program, and although I
have no vote, I have important input in every determination the board
makes. It would be seriously inappropriate for me to leave my position
to become an adviser to a campaign over which the board has
jurisdiction, or even to work for any important figure in any of the
campaigns. It would put into question the advice I gave the
board at least in the last election period, and the decisions the board
made on the basis of my advice.<br>
<br>
It's worth noting that a DeKalb County (GA) Housing Authority member
has recently taken a position opposite to that of the Indiana ethics code.
According to <a href="http://www.ajc.com/news/dekalb/finalist-for-dekalb-housing-629737.html&…; target="”_blank”">an
article in the Atlanta <i>Journal-Constitution</i> this week</a>, he said that
"the authority's policy against accepting gratuities doesn't even apply
to him. 'It really doesn't, because there's nothing I can give to
anybody' in return for a gratuity, he said. [He] reasons that it's the
authority's staff that negotiate the details of business transactions
with vendors and development partners. Even if those deals can't go
through without his vote, he doesn't believe his vote is worth
anything."<br>
<br>
Of course, he's wrong about himself, but he's right about the housing authority staff.<br>
<br>
I have added a clause to <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC42…; target="”_blank”">the
City Ethics Model Code revolving door provision</a> (the words "or
based on advice or information supplied by" in 11(e)) to make it clear
that advisers, researchers, and investigators are, in reality and from
the public's point of view, able to materially influence the
decision-making process, and often even have greater influence on a
decision than any single member of a board.<br>
<br>
<b>Update:</b> October 15, 2010<br>
According to <a href="http://www.indystar.com/article/20101014/BUSINESS/101014009/Ethics-pane…; target="”_blank”">an article in yesterday's Indianapolis <i>Star</i></a>, the state inspector general filed a complaint with the state ethics commission against the former IURC general counsel after an investigation showed that the general counsel "was discussing job prospects with Duke [Energy] weeks before signing an order clearing the way to pass $2.9 billion worth of construction costs at the Edwardsport plant on to consumers."<br>
<br>
According to <a href="http://www.indystar.com/apps/pbcs.dll/article?AID=201010120327" target="”_blank”">a <i>Star</i> article</a> two days earlier, the general counsel wrote in an e-mail message to the IURC chair, "It was impressive that you did not laugh during the Ethics hearing" on whether he could take a job with the state's largest electric supplier.<br>
<br>
Most telling are the last sentences of the article:<ul>
Citizens Action Coalition, an Indianapolis watchdog group that often fights utility rate increases on behalf of customers, sent <a href="http://www.citact.org/pdfs/10.11.10_Letter_Gov_IURC.pdf" target="”_blank”">a three-page letter to [Governor] Daniels</a>, demanding more answers about the IURC conduct, saying the issue goes well beyond bad judgment of a few people. "This problem is absolutely systemic," Kerwin Olson, the group's program director, said in an interview.</ul>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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