Constituent Services and Preferential Treatment Provisions

Anonymous

Tue, 05/07/2013 - 07:45

City Related

On April 30, the D.C. ethics board reached a settlement with a
council member (attached; see below), whereby he was admonished for
having "used the prestige of his office or his public position for
the private gain" of a company by influencing health department
personnel to leave the site of the business without issuing a notice
of closure, allowing the business to continue to operate for several
more hours. 
 
Some important issues are raised in this matter, including (1) the
line between constituent services and preferential treatment, (2)
the appropriateness of a preferential treatment provision, (3)
interventions of legislators and their staff in administrative
matters; and (4) an ethics board's role in limiting or prohibiting
constituent services.

The Line Between Constituent Services and Preferential Treatment 
There is a fine line between constituent services and preferential
treatment. Because the line is so difficult to place, most ethics
codes either do not have a preferential treatment provision or they
make an exception for constituent services. 
 
On the other hand, the provision of constituent services is a common
excuse for officials when they are caught having acted in a way that
specially benefits someone with a special relationship to the
official, especially large campaign contributors. This is why the
City Ethics Model Code's basic conflict provision considers those
who have given large campaign contributions as people with whom an
official has a special relationship. The effect of this is that,
when you give an official a large campaign contribution, the
official cannot intervene in a matter for your benefit, even in
areas where it would otherwise be considered appropriate to provide
constituent services. 
 
The problem is that when so-called constituent services are provided
to people who have special relationships with an official, they
often involve permits, contracts, grants, and regulations, which are
not areas for constituent services. These services involve doing
business with or being regulated by the government. These are the
areas where most ethical misconduct occurs. 
 
Constituent services are about dealing with ordinary government
services, the paperwork of citizens rather than businesses, situations
where no one is, or should be, getting special benefits. 
 
Preferential Treatment Provisions 
Ridding government of preferential treatment (also referred to as
“special consideration” or “favoritism”) is a central goal of
government ethics. Nothing sours the public on the fairness of their
local government more than feeling that some people are being given
special consideration, privileges, exemptions, short cuts, and jobs
that normal citizens do not have. And yet, despite being so basic,
the preferential treatment provision is one of the most problematic
ethics provisions. 
 
The District of Columbia's preferential treatment provision is
typical: "[a]n employee may not knowingly use the prestige 
of office or public position for that employee's private gain or
that of another." 
 
The problem with this sort of provision is that it is so vague and
open-ended. It is essentially an extension of the basic conflict
provision, in the sense that it takes a prohibition of the misuse of
office to provide benefits to someone with whom an official has a
special relationship, and extends this prohibition to cover benefits
to anyone. Enforcement of such a provision can be unfair to an
official providing constituent services, and can therefore turn officials against an ethics program. 
 
Therefore, a preferential treatment provision belongs in the
aspirational Declaration of Policy section of an ethics code, as it
is in the City Ethics Model Code, rather than in the enforceable
section. As an essential element of government ethics, preferential
treatment should be considered by officials in determining how to
deal with a situation and by ethics officers when giving ethics
advice. But when it comes to enforcement, the provision’s coverage
is too broad, the language provides insufficient guidance and, due
to its vagueness, it can be used as a blunt weapon against an
official or it can be a trap into which an official may unknowingly
fall. 
 
The D.C. ethics board is not itself clear about the distinction
between preferential treatment and conflict of interest provisions.
In <a href="http://bega.dc.gov/sites/default/files/dc/sites/bega/District_Ethics_Ma…; target="”_blank”">its manual</a>
 
It is true that the settlement is based on a provision in the
council's code of conduct, but the language for employees is the
same. In fact, the council code of conduct language was taken
directly from the ethics code. 
 
Legislative Involvement in Administration 
One way of dealing with the kind of situation that arose in D.C. is
by limiting the involvement of legislators and their aides in
administrative matters. Legislatures are supposed to deal with
policy, not administration. Any time legislators get involved in
administrative matters, there is the possibility not only of
influence (the word used in the settlement agreement), but also of
intimidation, something which the council member acknowledged to the
Washington Post editorial board, according to <a href="http://www.washingtonpost.com/opinions/the-dc-ethics-boards-promising-s…; target="”_blank”">an

editorial on Sunday</a>. 
 
Rules to prevent this sort of intervention and intimidation appear
in charters, ordinances, and council rules and regulations. The
major question is how to enforce such rules and who should do the
enforcing. One possibility is the ethics board, but more commonly
enforcement is done by the legislative body itself. When it is
common for constituent services to be taken beyond the line, it is
rare that such a rule is enforced, unless there is a big scandal.
And even then, there is sometimes a scapegoat rather than a complete
change in the way council members interact with employees and administrators. 
 
An Ethics Commission's Role 
I don't feel that an ethics commission should enforce such a rule
unless there is a clear line drawn for it. The problems that arise
are ones of fairness and ones of stepping on elected officials' toes
in an area that can be very important to them. 
 
This is why I think that it is better to limit ethics commission enforcement to
situations where there is a special relationship, rather than where
there is intervention in administrative matters. This is because
special relationships are the province of the ethics board, whereas the
role of elected officials is not. 
 
However, there is an alternative, whereby an ethics commission can
make a difference without an enforcement proceeding. An ethics
commission can go beyond the criminal paradigm of enforcement of
laws against individuals, and call a hearing to deal with common
conduct that is undermining public trust in the government. 
 
In this particular case, the Post editorial refers to the council
member's conduct as behavior "in keeping with D.C. political
customs." In other words, the council member did not act in any way
out of the ordinary. Therefore, he can either be made an example of,
using a vague law, or the conduct itself, rather than the
individual, can be the subject of a public hearing. 
 
The Post came out in favor of making an example of the council member. The
editorial ends by lauding the ethics board as the “new sheriff in
town," holding officials to account, and showing a "grounded and
judicious approach." But the Post does not appear to have considered
the vagueness of the provisions the ethics board have been
enforcing, a practice many government ethics practitioners would not
consider either grounded or judicious. Nor does it appear to have
considered dealing with the conduct rather than the individual,
acting not as a sheriff but rather as a grand jury given the job of
considering and making recommendations regarding widespread
misconduct. 
 
The D.C. ethics board does not, I believe, have the authority to
hold a hearing on the limits of what council members call
constituent services. On the other hand, there is nothing to prevent
it from doing so. I recognize that it would be a radical step to
take. But I think it would be more fair and more effective in the
long run. And I think it would be very well accepted. 
 
Legislators Performing Constituent Services 
For the purposes of the Speech or Debate Clause, which is the basis
for legislative immunity, constituent services are not considered
part of "legislative activity," which is the only kind of activity
immune from criminal enforcement. Maybe the Supreme Court is on to
something. 
 
It is worth considering whether constituent services should be the
province of elected representatives. This is rarely questioned.
However, local legislators are elected to determine policy, not to
deal with nitty-gritty matters. This is what the executive branch is
supposed to do. The provision of constituent services allows local
legislators to justify preferential treatment by simply saying they
were helping a constituent, even if they would most likely not have
given so much attention to the needs of an ordinary citizen.
Considering how important constituent services are to re-election,
this area of government confuses governance and election campaigns
(the settlement agreement does not acknowledge something that the
editorial does, that the owner of the company for which the council
member intervened was a campaign contributor to the council member).
Also, those who live in the districts of more senior legislators
tend to get better service than those who live in the districts of
junior legislators. This is simply unfair. 
 
When you start thinking about constituent services, it seems more
reasonable for them to be provided by an office under a city or
county manager or administrator. This would lead not only to better
service overall, but also fewer legislative aides who are
effectively working for re-election campaigns and making government
service appear something that those with connections can have to an
extent others cannot. 
 
For more on this topic, see the following blog posts: 
<a href="http://www.cityethics.org/content/summer-reading-corruption-and-america…; target="”_blank”">Wayne

Le Cheminant's Essay</a> 
<a href="http://www.cityethics.org/node/425" target="”_blank”">"Constituent
Services" Can Be Another Term for Quid Pro Quo</a> 
 
Settlements 
I've been very critical of the D.C. ethics board since it was
formed. So let me praise it for having entered into a settlement
with a council member (and the council member, too, for having done
so), and for quickly putting the settlement agreement on line. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
---

Search

Constituent Services and Preferential Treatment Provisions

Tags

Share This Page