Summer Reading: Richard Painter on Ethics Reform I

Anonymous

Mon, 09/09/2013 - 09:48

Advisory Opinions

Richard W. Painter's <a href="http://www.amazon.com/Getting-Government-America-Deserves-Difference/dp…; target="”_blank”">Getting
the Government America Deserves: How Ethics Reform Can Make a
Difference</a> (Oxford U.P., 2009) may be about the federal
executive branch ethics program, but this excellent book also has a lot
to offer to local government ethics. This is the first of three blog
posts about this book, focusing on Painter's recommendations for
ethics reform and how they could be applied to local government
ethics programs. 
 
Contractors et al. 
Painter notes that those who oppose ethics program jurisdiction over
government contractors argue that it is unnecessary because
contract employees are not decisionmakers, company ethics policies
are adequate, it is obvious when contract employees try to steer
decisions to favor their employer's interests, and ethics oversight over
contractors is burdensome and costly. 
 
Citing a <a href="http://www.gao.gov/products/GAO-08-169" target="”_blank”">General Accounting Office report from 2008</a>, Painter
argues that contract employees have influence, even when they do not
make decisions (and, I would add, they do sometimes make decisions),
and that it is not obvious when they provide biased information (or,
I would add, when they act in ways that benefit themselves or their
employer).

Painter sums up the problem in the following sentence: "Unless
form is to prevail over substance, persons doing government work,
regardless of their employer, should be subject to ethics rules."
Painter advocates what he calls "default rules," that is ethics
rules that apply to contractors, but which can be modified in any
particular contract, "providing the contracting officer accepts
responsibility for the change and explains it in writing to a
supervisor and an agency ethics officer." I would add that such a
change in ethics rules should be approved from someone in the ethics
program, following waiver procedures. 
 
Painter believes that there should also be someone to assure
compliance with the rules, and that this someone should not be
procurement officials, but rather the ethics program (which would
need an increase in its budget to do the job adequately). 
 
It's equally important that local ethics programs have jurisdiction
over contractors. But not just contractors. Also those seeking
permits, grants, and other special benefits from the government.
Those on both sides of government transactions should be subject to
the same requirements, including disclosure, and should be able to
seek the same advice and get the same training. 
 
Opt-in Rules 
My favorite among Painter's recommendations is one to create a system of "enforceable
campaign promises" that become embodied in opt-in ethics rules that
are more stringent than the minimum requirements imposed by ordinary
ethics rules. For example, a candidate who says she will not
participate in any matter that may benefit anyone who has made more than $300 in
aggregate campaign contributions to her will be held to that promise by
the ethics program. 
 
This brings competition into government ethics. It is a
great way to create a race to the top. Not only will candidates
be held to their promises, but they are likely, when elected, to turn
their promises into ethics rules that apply to everyone, since they will be held to them
anyway. Yes, even selfishness can be employed to improve a government's ethics environment. 
 
Requirement to Seek Advice or Approval 
Painter points out that federal officials and employees are required
to seek ethics advice or approval before engaging in certain
conduct, such as attendance at an event. Such a requirement is
extremely rare at the local level. 
 
Since it is so difficult for many
people to bring themselves (or convince their colleagues) to seek ethics advice, even though they automatically seek
legal or engineering advice, <a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Req…; target="”_blank”">I
argue in my book Local Government Ethics Programs for a more
general requirement</a> to seek advice. But I realize that this is
highly unlikely. A good compromise would be to require officials to
seek advice, approval, or a waiver in certain situations, such as
whenever someone other than a close family member offers or gives
them a gift, a job, or work, or invites them to an event. 
 
Pre-Employment 
Painter recommends "stricter rules on persons coming into government
from the private sector." Revolving door laws often provide adequate
guidance for those leaving government for the private sector, but too rarely do they deal
with the movement of the door in the opposite direction. Conflicts should
be dealt with before an official takes office. 
 
The White House has its own ethics office (Painter headed
it under George W. Bush). One of its most important jobs is to look
at a nominated appointee's recent employment, business and family
relationships, spousal employment and relationships, and
investments. The goal of this review is a written "ethics
agreement" among the nominee, the agency, the White House, and the
ethics program. It usually takes the form of a letter from the
nominee to the agency ethics officer clarifying how ethics rules
would apply to the nominee's particular situations, including
specific steps the nominee will take to deal responsibly with these
situations. The letter is also sent to the Senate, which must
approve the appointment. 
 
This would be a great idea for high-level appointees in local
governments, including members of important boards and commissions.
Such a letter would be sent to the council with respect to the
nominees it is required to approve. 
 
Painter makes an important observation about such ethics agreements:<blockquote>

Ethics agreements that require only what the law requires, and no
more, may not address the appearance of outside influence that could
endanger Senate confirmation and arouse public suspicion.</blockquote>

In other words, as with ethics advice, those working on an ethics
agreement should acknowledge that ethics provisions are minimum
requirements and that more is expected of a high-level nominee. 
 
Painter recognizes that many officials will worry that an ethics
agreement that exceeds minimum requirements sets a dangerous
precedent, and that the legislative body may ask why other nominees
with similar conflict situations have not agreed to similar solutions. But
this is not the right attitude. Nominees who offer to do more than
necessary should be lauded for doing this, so that others will be
more likely to do so in the future, not due to legal precedent, but
rather to handle their conflict situation responsibly. 
 
One particular pre-employment problem Painter points out is the
"extraordinary payments" made by companies to employees who are
about to enter government service. These are effectively a reward in
advance for helping the company from within the government. This
kind of thing is far less likely to occur at the local level, but
there are businesses that can receive serious help from within a
local government, for example, law firms (and their clients) and
realtors (and their clients). These relationships should be discussed, along with ways to prevent problems that may arise from them. 
 
Post-Employment 
With respect to post-employment issues, Painter recommends an
"ex-post review" some time after a government official or employee
takes a job with a company that does business with or is regulated
by the government, to see what role that official or employee has
played. This would be equally as valuable at the local level. In some
cases, Painter wrote, decisions that are not irreversible may have
to be reconsidered. 
 
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 2 of this three-part post</a> 
<a href="http://www.cityethics.org/content/summer-reading-richard-painter-ethics… 3 of this three-part post</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
---

Search

Summer Reading: Richard Painter on Ethics Reform I

Tags

Share This Page