An Advisory Opinion Concerning Constituent Services

Anonymous

Tue, 09/03/2013 - 09:41

City Related

On August 29, the D.C. Board of Ethics and Government Accountability
issued an advisory opinion on the important and far too overlooked
topic of constituent services (attached; see below). The issuing of
advisory opinions that cover more than a very specific set of facts,
what I call "general advisory opinions," is itself very valuable (see
<a href="http://www.cityethics.org/files/lgep1-0%20-%20Robert%20Wechsler.htm#Gen…; target="”_blank”">the

section of my book</a> Local Government Ethics Programs on general
advisory opinions). 
 
This particular general advisory opinion is useful in many ways,
especially in its General Considerations and Illustrative Scenarios
sections. But it also has a few weaknesses. Critiquing them will
help not only the new D.C. ethics board, but also other ethics commissions,
anticipate problems and consider solutions to them.

Constituent Services 
Constituent services are an unusual aspect of a legislator's role. Although
they are considered to be an important part of a legislator's
obligations to the public, they are actually something else. As the
U.S. Supreme Court recognized in its opinion in the case U.S. v.
Brewster, 408 U.S. 501, 512 (1972), constituent services "are
performed in part
because they have come to be expected by constituents, and because
they are a means of developing continuing support for future
elections. Although these are entirely legitimate activities, they
are political in nature rather than legislative, in the sense that
term has been used by the Court in prior cases." 
 
Considered legitimate legislative conduct, constituent services are often excepted from preferential treatment
and other government ethics provisions, as they are in the District
of Columbia. But it is important to acknowledge that a principal
defense to accusations of preferential
treatment is that the official was just performing constituent
services. Looked at more closely, the
services often went to someone with a special relationship to the
official (sometimes a
large campaign contributor) and went beyond the usual help with the
provision of ordinary
government services. The problems arise when such "services" are
provided in areas such as land use, procurement, licensing, and
grant-making. This is where there is the greatest likelihood that
such services may be seen as repaying a debt rather than as simply providing
help to constituents having problems working their way through the
bureaucracy. 
 
A big problem with the provision of constituent services is that a
legislator often does not know how legitimate a constituents' claims
are. Legislators have an
obligation to check out constituents' factual claims, especially
when the stakes are high. As U.S. Senator Paul Douglas once said, a
legislator
"should not immediately conclude the constituent is always right and
the administrators always wrong.” 
 
The legitimacy of constituents' claims is especially problematic
when a legislator sees her role as
an advocate rather than a representative. Dennis F. Thompson wrote
in his book <a href="http://books.google.com/books?id=KZN91jHlSB0C&printsec=frontcover&dq=et…; target="”_blank”">Ethics in
Congress</a> (1995), “To the extent that members see
themselves as advocates, they may not recognize ethical problems in
the way they intervene. They take their role to be like that of a
lawyer, whose duty, they assume, is to fight for the client without
regard to the merits of the case.” 
 
A council member is not a
constituent's attorney; she is only the constituent's
representative.
And she is also the representative for the rest of her district,
city, or county. Therefore, she has to determine whether it is in
the
public interest to pursue the claim. 
 
Another important issue with constituent services, but one that is
not part of government ethics (although it is sometimes handled by
ethics programs), relates to the division of powers between the
legislative and executive branches, as well as between a legislative
body and boards and commissions, whose work is often quasi-judicial
in nature. When legislators get involved in executive and board
matters, they need to respect the division of powers while
fulfilling their obligation to the public to make sure that matters
are being taken care of efficiently and fairly elsewhere in the
government. 
 
The D.C. opinion talks about real and implied threats of
retaliation by legislators against others in the government.
Intimidation against citizens and subordinates is often a government ethics problem, but
in this instance it is a division of powers problem that needs to be
worked out between the council and the executive. In council-manager
forms of government, where the executive manager is chosen by the
council, this can be especially problematic. But even without
accountability based on direct election by the community, a manager
or or a board chair needs to stand up to council members who
overreach their authority. 
 
Recommendations for Dealing with Constituent Requests 
The heart of this advisory opinion is a list of seven general
considerations "which elected officials should weigh when faced with
any constituent's request for assistance." The opinion's practical
approach here provides useful guidance. The "general considerations"
are listed below, in a mix of the opinion's language and my own.
Every ethics commission should seriously consider drafting a general
advisory opinion that makes similar recommendations to local legislators for dealing with
constituent requests.<blockquote>

1. Factor out self-interest, one's own and others'. Remember that
furthering the public interest is the goal even when a particular
constituent requests help in a particular matter. 
 
2. Without personal knowledge of the situation, present factual
contentions as those of the constituent, not as one's own. 
 
3. Document all constituent requests and the action take in
response. To the extent possible, put the entire transaction in
writing. 
 
4. Have written rules for constituent service transactions and train
staff in these rules, so that such services are provided
consistently as possible. 
 
5. Strive for "power parity" in all constituent service
interactions. That is, interact only with agency heads, board
chairs, and general counsel. Assign staff to deal with lower-level
officials. Doing this means less potential for intimidation, real or
perceived. 
 
6. Avoid any hint of a carrot or a stick. 
 
7. Avoid any appearance that service is being provided to a
constituent due to any possible benefit provided (including campaign
contributions) or to party affiliation, prior employment, or
a personal or business relationship. With respect to campaign
contributions, considerations include amounts, frequency, and
proximity in time.</blockquote>

Scenarios and Advice 
The general considerations are followed by seven pages of scenarios,
which provide concrete pictures of how elected officials should
handle particular constituent service situations. On the whole,
these scenarios and the advice that goes along with them are
excellent. 
 
However, I differ with some of the advice, for example, the advice
that goes along with the scenario A2, where a council member
contacts the Zoning Commission for a status report on a variance
matter that involves a constituent. It's not that the advice is
wrong. It's that it accepts a situation that, although common, is
not a best practice. A footnote in the opinion says that "these
examples are meant to demonstrate ... 'best practices.'" This is a
situation where I think the opinion should have pointed out the best
practice. 
 
The scenario is followed by the sentence, "If it is customary for
the Councilmember to contact the Commission on routine matters, then
her doing so in this example can be presumed to be
appropriate conduct." This advice is based on language in the
council's code of conduct, "The performance of usual and customary
constituent services, without additional compensation, is not
prohibited." 
 
The first issue here is, does this mean "usual and customary" to the
particular council member, or to all council members? Although I
agree with the opinion's fourth general consideration, should each council
member have her own constituent service rules, and are they okay just because
she consistently follows them? This is apparently what is done in
the District of Columbia. But it is preferable for a council to have
written rules that all its members follow. 
 
With such rules, staff can be trained together to follow these
rules. Having such rules make it easier to train, easier to be
consistent, easier to provide advice, easier for staff to provide
oversight when other council members are involved, and easier for
the rest of the government to know what to expect when it deals with
council members and their staff. If each council member has his own rules,
even if they are in writing, how is an agency employee or a board
member to be able to keep track of what it takes for a council
member or staff to cross the line from acceptable conduct to
unacceptable conduct? 
 
I also differed with the advice that accompanies scenario E6.
This scenario involves a company that tells a council member that a
competitor, which is a city contractor, has violated a local law.
This leads the council member to request an investigation by the
agency. The contractor claims that the investigation stemmed from
political pressure instigated by its competitor. 
 
The opinion states that there is nothing "readily in the public
interest to justify Councilmember's involvement." It suggests that
the council member ask himself whether requesting the investigation
would appear to be seen as in the competitor's favor. 
 
It's true that appearances matter, and an investigation based on a
competitor's tip should be kept confidential until there is
confirmation of the allegations. But it is also true that many
problems involving contractors come to light from tips made by their
competitors, especially losing bidders. These tips should not be
ignored just because they may result in a benefit to the one
providing the tip. 
 
What I don't understand here, as in many instances, is why the
council member should be involved at all. A company can make a tip
directly to the agency. A council member should insist that this be
done, and that he be contacted only if the agency refuses to
investigate. But even here, this would be less a constituent issue
than a policy issue regarding the investigation of tips made by
competing companies. This more general problem would better be dealt
with by a council committee than by an individual council member in
whose district the competitor happens to be based. 
 
Centralized Constituent Services 
This brings me to a bigger issue: whether constituent
services, beyond minor help given to a person who is not even a prospective
campaign contributor, should
ever be dealt with by individual legislators. This question is
rarely asked. And yet local legislators are elected to
determine policy, not to deal with nitty-gritty matters. This is
what administrators are
supposed to do. 
 
The provision of constituent services allows local legislators to
interfere individually in administrative matters and 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
blurs the line between governance and election campaigns. 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 unfairness in support of
power and incumbency. 
 
When you question the handling of constituent services, it seems
more reasonable for
them to be provided by an office in the council, by an ombudsman or,
in a smaller jurisdiction, by the city or county manager or chief
administrator.
This would lead not only to better service overall, but also to
fewer legislative aides who are
effectively working for re-election campaigns and making government
service appear as part of getting re-elected. In fact, Dennis Thompson recommended just such
an office for Congress in his seminal book <a href="http://books.google.com/books?id=KZN91jHlSB0C&printsec=frontcover&dq=et…; target="”_blank”">Ethics in
Congress</a> (1995) 
 
Relevant Advisory Opinions Elsewhere 
I learned two things by looking through the online advisory opinions
of local and state ethics commissions or opinions about constituent services. One is that few ECs make
their opinions searchable. Some do not even provide an index and
just have dozens of numbered PDFs that mean nothing to anyone but EC
staff. This is inexcusable. 
 
All an EC needs to do is make one big file of its opinions (HTML
rather than the usual PDF, so that readers don't have to download a
huge file), which would then make all the opinions searchable. It is
easy to update such a file once a month or so. 
 
Two is that there are very few opinions that touch on the provision
of constituent services, even though this area gives rise to some
important and difficult conflict situations. In March 2013,
Philadelphia's EC gave an opinion regarding the legal representation
of constituents and the referral of constituents to attorneys (attached;
see below). While the opinion itself says little about constituent
services, there is a memo attached to it that has a valuable section
on such services. 
 
It is worth noting that the opinion and memo have been made public
only because the council employee who requested it waived her right
to keep them confidential. It would have been a crime to keep this
information secret, and no harm could have come to anyone by making
it public. 
 
There is an excellent <a href="http://www.mass.gov/ethics/education-and-training-resources/educational…; target="”_blank”">2013
Massachusetts advisory opinion</a> on officials making
recommendations for employment. This is an issue that is also dealt
with in the D.C. opinion, but here it is dealt with at more length. 
 
It is worth noting that Massachusetts advisory opinions are public
and are included on the EC website under "educational materials." If
all officials had the sense to recognize advisory opinions as
educational, rather than possibly harmful to them personally, there
would be vastly more advisory opinions available for local
officials, as well as other ECs, to read. At least if they were made
searchable. 
 
Other opinions would certainly have been useful to the drafting of
the D.C. opinion, which mentions not a single advisory opinion.
Thankfully, D.C. opinions are searchable as part of <a href="http://bega.dc.gov/publications?after[value][date]=&before[value][date]…; target="”_blank”">a
publications search page</a>. 
 
Accessibility of Advisory Opinions 
One problem with the D.C. constituent services advisory opinion is
that it is unlikely that any official or employee other than a
lawyer will read it. The most valuable parts of the opinion start on
page 8 of 18. Before that, the reader needs to wade through five
legalese sections, with twenty footnotes. 
 
But the most problematic footnote is no. 32, on page 10, which contains
the most important words of the opinion:<blockquote>

[F]ailure to strictly adhere to certain of these recommendations may
not in every case rise to the level of a Code of Conduct violation.
Nonetheless, it is highly advisable that elected officials follow
these practices in order to avoid allegations of ethical misconduct
and potential sanctions where best practices standards do, in fact,
intersect with minimal ethical standards. In case of doubt about
which way to proceed, the best practice would be to seek advice from
BEGA. The examples herein are hypothetical. Only with specific,
actual facts can BEGA provide "safe-harbor" advice (advice that, if
followed, protects the inquirer from sanctions) under the Ethics
Act.</blockquote>

It's true that the opinion's conclusion, if anyone gets that far, also
encourages elected officials to seek advice (but why not their
staff?). But the best statement of this appears in footnote 32. This
is certainly not where it belongs. 
 
The Philadelphia approach (attached; see below) — a four-page advisory opinion,
without footnotes, followed by a legalese memo — makes an advisory
opinion much more accessible. The D.C. opinion, in this case, had to
be longer, due to the many scenarios, but they could also have been
included in a separate, but attached document. The opinion could
simply say that this is a general opinion and that officials should
seek advice when faced with specific requests for constituent
services, state the question, define constituent services in a
simple manner, provide the relevant ethics provisions and how they
relate, go through the considerations, and then reiterate the need
to ask for advice. A list of scenarios would follow, and then a
memo discussing the issues with lawyers in mind. 
 
Blind Spots and Institutional Corruption 
The D.C. opinion quotes from Dennis F. Thompson's book Ethics in
Congress, but only once. He had a lot more to say about constituent
services in this book, beyond what I cite above (see <a href="http://www.cityethics.org/content/ethics-congress-v-constituent-service…; target="”_blank”">my
2011 post on this</a> for more). 
 
For example, Thompson noted a serious blind spot legislators have
with respect to the provision of constituent services: "The culture of
Congress is so strongly imbued with the
ideal of serving all constituents equally, the members find it
difficult to acknowledge any favoritism in such service. They
believe, with evident sincerity, that they serve all equally." 
 
Thompson also looked at constituent services in terms of
institutional corruption. For an application of Thompson's ideas on institutional corruption to
a constituent services scenario, see <a href="http://www.cityethics.org/content/ethics-congress-i-institutional-corru…; target="”_blank”">another
blog post of mine</a> from 2011. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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