Revolving Door Provisions in Local Government Ethics Codes

Anonymous

Tue, 03/23/2010 - 07:29

Model Code

I've been meaning for a long time to take a long second look at the <a href="http://www.cityethics.org/content/full-text-model-ethics-code" target="”_blank”">City
Ethics Model Code</a> provision on the <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC42…; target="”_blank”">revolving
door</a> that many officials walk through between government and firms that
do business with government. It's a complex matter, and local
governments as well as states with jurisdiction over local government
ethics deal with it in a variety of ways. Revolving door, or
post-employment, provisions vary from a single sentence to almost 1,500
words in the District of Columbia.

The revolving door is also often dealt with in lobbying provisions and
confidential information provisions, and ordinary conflict of interest
provisions may or not cover the situation where employment is offered
to or sought by a current government official. 
 
In a great many local governments, there is no provision dealing with
the revolving door and, in fact, many local ethics commissions have no
jurisdiction over former officials (a big mistake). 
 
Why the Revolving Door Is So Important 
Why is the revolving door such an important government ethics issue?
One, because it is so common. And two, because this common activity,
more than any other, sends the message to citizens that people run for
office and go into government service in order to win the corporate
lottery, and to use their time in office to do what they need to do to
appeal to contractors, developers, and other companies that do business
with local governments. 
 
Most people rightly believe that appealing to such companies is not in
the public interest, but in the officials' personal interest, even if
it doesn't pay off (other than in the form of campaign contributions)
until they are no longer in public service. 
 
The problem with the revolving door is usually put in terms of undue
influence or unfair advantage given to the companies that hire, or
might hire, government officials, either as full-time employees or as
professionals (lawyers, lobbyists, engineers, etc.). This influence and
advantage might exist at any time during an official's time in office,
but the situation can be dealt with only after the fact, because there
is usually no actual transaction or even promise, just a tacit
understanding that there will be future rewards for help given by
officials. 
 
Of course, if there is proof of a job offer in return for the official's action (difficult to prove without bugging someone), it is no longer an ethics matter, but rather the crime of bribery. 
 
There is also, of course, the pay-to-play side of the equation, where
officials demand future employment in return for favors granted. 
 
There is a second revolving door problem, where nothing may have
occurred during the official's time in office. That is the use of an
official's contacts, influence, and knowledge to unfairly help certain
individuals and entities. This is commonly done through lobbying, but
it can take many forms, including, for example, providing advantage in
getting competitively bid contracts and more quickly getting approval
of land use requests. One call to someone you mentored, who is now in
your position, can do wonders. 
 
Revolving Door Provisions 
A revolving door provision should consist of a few sections. There are
two principal sections, one involving representation, or acting on
behalf of an individual or company, the other involving employment. The
employment section is divided between employment by a contractor and
employment by those who have benefited from decisions made by an
official. 
 
There are also two levels of official involvement: personal
involvement in the particular matter, and involvement through having had
official responsibility over the particular matter, that is, authority
over those personally involved in it. 
 
Higher-level officials should be treated differently from lower-level
officials. A former board member need be banned only from appearing
before his or her board, and a former agency employee need be banned
only from appearing before his or her agency. But a former mayor, city
manager, or council member, and major staff, should be considered to
have worked for every agency and board, because their jurisdiction,
connections, knowledge, and power were so broad that their influence
can be felt throughout the government. Thus, they should be banned from
representation of or employment by those doing business with the local
government. 
 
There is also the issue of doing business with one's government. San
Antonio and Dallas have a provision that prohibits former officials
from selling anything to their government or entering into a no-bid
contract with their government for one year after termination (it's six
months in Nashville). Seattle prohibits bidding on any contract an
official was involved with; this prohibition, however, lasts only one
year. 
 
Revolving Door Provisions - Time Period 
One of the toughest issues in drafting a revolving door provision is
setting the time period during which officials cannot do certain work,
or cannot work for certain individuals and entities. It is common for the
period to be one or two years across the board, but no one period is
appropriate for all revolving door issues. 
 
One year is too short a time period to
accomplish the goals of a revolving door provision, but the longer the
bar, the more difficult it might be to hire qualified officials or find
qualified candidates for office. This is the trade-off every local
government must make in setting the time period. I have used two years
for the ordinary representation and employment bans, the period used, for example, in Baltimore,
Jacksonville, and in at least four Texas cities, San Antonio, San Jose,
El Paso, and Austin. 
 
I think that one year is essentially
cosmetic: it's a ban, but it's a short enough time that it's
worth waiting out. Two years, I think, is a reasonable compromise
between effectiveness and the burden on government officials. 
 
When an official has been involved personally and substantially in a
particular matter, the revolving door ban should be unlimited in time.
Any involvement at any time would create a clear conflict between the
official's public and private work, and serious opportunities for abuse. 
 
Revolving Door Provisions - Exceptions 
The City Ethics Model Code includes five exceptions to the revolving
door provision: for those willing to do volunteer work for the
local government, those acting on behalf of other governments, those
testifying without compensation, those providing technical information
at the government's request, and those who, when in office, performed
only ministerial acts, that is, had no effect on policy and were not involved substantially in transactions. 
 
Some revolving door provisions extend the exception for government
agencies to work for an official's own government as a paid consultant.
Even though this would not create a conflict, this sort of work allows
sweetheart deals between the local government and former officials, who
normally have the edge in competing with vendors lacking their
municipal contacts. In effect, they themselves are the company they are
providing an unfair advantage to. For this reason, a former official
should consult to the city only on a volunteer basis for the first one
or two years after public service. 
 
Revolving Door Provisions - Waivers 
Because the appearance of impropriety surrounding the revolving door is
so strong, an official who is not certain whether this provision
applies to work they are seeking or are requested to do, and who does
not want to turn it down, should ask the ethics commission for an
advisory opinion or a waiver. 
 
Because revolving door provisions can
create a serious burden for former officials, this is an area where
waivers are more common than elsewhere. What is important in granting a
waiver is that it be done in public -- no executive sessions, and a
clear decision setting out facts and conclusions -- and that it show
clearly that there would be no undue influence and that nothing the
official did while in office could be seen in a different light after
knowing that he or she was offered employment shortly after the
termination of public service. In other words, there should be no appearance of impropriety. 
 
Other Provisions 
Many local governments expressly include former officials and employees
in their confidential information provisions. For former officials,
especially, it is important that such provisions apply to confidential
information that benefits not only the official, but anyone, including
companies that can greatly benefit from it. Revolving door provisions
should, at least in a comment, make reference to the confidential
information provision, so that former officials can find their
prohibitions all in one place. 
 
Massachusetts includes former local officials in its gift ban when
gifts are "because of official action." If the matter was only within
an official's area of responsibility, the gift ban lasts only one year. 
 
There is another side of the revolving door, the revolving door from
the business world into government. It may be dealt with in language
like the following, which can be added to the conflict of interest
provision: 
<ul>
It is a violation of this code for an official or employee to, within
one year of entering city employment or service, award a contract or
participate in a matter benefiting a person or entity that formerly
employed him or her. 
</ul>
This is actually a basic conflict of interest, but since the official
is no longer employed, it will not necessarily be considered a conflict
unless it is expressly stated to be one. 
 
Here are links to the relevant City Ethics Model Code provisions: 
<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC42…; target="”_blank”">Revolving
Door</a> 
<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC39…; target="”_blank”">Confidential
Information</a> 
<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC32…; target="”_blank”">Conflict
of Interest</a> 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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