A Miscellany

Anonymous

Thu, 08/09/2012 - 05:50

Advisory Opinions

Ethics Code Amendment Without a Scandal 
Sometimes conflict situations, when they are handled responsibly,
lead to changes in an ethics code. This happened recently in Prince
William County, Virginia, according to <a href="http://www2.insidenova.com/news/2012/jul/25/gainesville-supervisor-pres…; target="”_blank”">an
article on the insidenova.com website</a>. 
 
A county supervisor wanted to give $100,000 of his
discretionary funds to his wife’s charity project. Then he
thought the matter through, and decided not to. But he didn't
stop there. He presented an amendment to the county's conflict
of interest policy that would prevent
county supervisors from voting on any matter where the
supervisor or an immediate family member had a direct conflict
of interest, and on any matter where funding was directed to an
organization on whose board the supervisor or family member sat.

Like most amendments that arise out of a particular situation,
this one is limited in scope. Better that the entire area of
conflicts be rethought, for example, by considering other
indirect conflicts and by considering whether recusal from
voting is sufficient. What sets this limited amendment apart, however, is that it
did not arise out a scandal, but out of the responsible handling
of a conflict situation. 
 
Ironically, the amendment was to be presented on the same day
allocation of carryover funds was to be made. Among the
allocations was to be an allocation
to a nonprofit on whose board another county supervisor's spouse sits.
Will that supervisor vote on this allocation, even if it is
currently legal? And is it enough to prevent voting? Won't the
public trust be undermined if the board of supervisors funds the
charities of its members' spouses even without the members' vote
in any particular situation, especially if the members, or the
members' spouses, present the allocation of funds to the board
publicly or in private? 
 
Self-Dealing in A Grant Allocation Arrangement 
Here's another, even more laudable local government ethics
story. According to <a href="http://www.dailymail.com/Opinion/Editorials/201208050139" target="”_blank”">an
article in the Daily Mail this week</a>, it's
been seventeen years since the state's health and human resources
department created West Virginia Local Health, Inc. to be a "fiscal
intermediary" to pass federal grant money on to local health
departments. So far, so good. 
 
The problem was that the nonprofit's board consisted of
representatives from some local health departments. Not only did
this mean that the board members would be on both sides of
transactions involving their departments, but it meant that they
would be tempted to give more to their departments than to those who
had no representative on the board. 
 
Not surprisingly, that is just what happened. In a series of grants,
the 6 county representatives gave themselves 49% of the grants,
which meant that the remaining 13 departments split the other half,
giving them half as much each, on average. 
 
The responsible party here was the board and executive director of
one of the health departments, which voted to withdraw from a $1.2
million federal grant because they felt the arrangement was
unethical. They asked the state EC for an advisory opinion, and the
EC said that the arrangement was not acceptable. 
 
What is amazing, however, is that this arrangement had been going on
for sixteen years, and no one had protested, even the health
departments that were shafted. Perhaps they felt they would get
their chance in the future. 
 
Government Ethics Is Not a Game 
Government ethics laws are not like other laws. They provide minimum
requirements that guide officials toward responsible action. They
are not intended for ordinary people, but rather for people who have
special obligations, are seeking office that comes with special
obligations, and are helping candidates seek office. Government ethics laws are intended to make government and campaigns fair
and transparent, in line with the democratic values of our society. 
 
And yet officials, candidates, candidate supporters, and their lawyers often treat government ethics laws like any other
law. They take advantage of ambiguities, interpreting them to their
personal advantage. They find loopholes and make use of them. They
act as if transparency was not the default value of our democracy,
as if they were living in some other country where government and campaigning is
done behind closed doors, and the public has no say in making their
representatives and their campaigns act differently. In fact, they act as if it was all a game. 
 
Here's a stark example of what I mean. According to <a href="http://articles.latimes.com/2012/aug/01/news/la-pn-crossroads-avoids-sp…; target="”_blank”">an
article in the Los Angeles Times last week</a>, Crossroads GPS, a
501(c)(4) nonprofit that runs "independent" electioneering ads, found
a typo on the Federal Election Commission website. It said that the
period prior to a party convention, during which disclosure must
be made by those paying for electioneering ads, would begin on August
7, when the date was actually August 4 (the date is based on 30 days
before the convention). 
 
Instead of simply telling the FEC it had a typo on its website, and
respecting the 30-day disclosure period, Crossroads GPS apparently
decided to continue running its ads for three extra days. 
 
It's as if a football player saw the nearby ref rubbing his eye, and
used the occasion to punch a guy on the other team. Except this
player was helping a presidential candidate win an election, and
this player had, not long ago, been one of the most powerful
men in the United States government. 
 
If this individual recognized his responsibility to explain to Americans why his
organization had done the wrong thing, it would not only be an
important event in the history of government ethics, but it would
even indirectly help his candidate. But don't hold your breath. 
 
Even the FEC doesn't get it. It said in a
statement, “The commission will exercise its prosecutorial
discretion and will not take enforcement action with respect to
communications disbursements made in reasonable reliance on the
erroneous information on the website in connection with EC reporting.” 
 
It's highly unlikely that there was "reasonable reliance." Lawyers don't check a website to
determine when a 30-day period begins. 
 
As for Crossroads GPS, it only cares about keeping its donors
secret. Its spokesperson said, “Crossroads has no plans to air ads
that will trigger reporting in the [electioneering communications]
window.” 
 
For both sides, it's a game of football, not something about
fairness, transparency, and democratic values. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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