The Revolving Door and the Appearance of Impropriety

Anonymous

Sat, 08/30/2008 - 06:09

City Related

It was exciting to see someone who made her reputation as a government ethics advocate
named to the Republican ticket. But it was very troubling to read how
she handled a recent revolving door matter.

Also, what she did and said made me realize there is a hole in the City
Ethics Model Code Project's <a href="http://www.cityethics.org/mc/full#TOC42" target="”_blank”">provisions on the
revolving door</a>. The provision deals with what officials do after
their public service, but not what public servants might have done
before they came on board. 
 
The general rule applies to only one year after termination of government
employment. However, "With respect to particular matters on which the
official or employee personally worked while in city service or
employment, this bar is permanent." But what is the appropriate term
when someone who has lobbied for a company becomes a government
official specifically to advise on a matter involving that company,
especially when a large (in this case $500 million) subsidy is involved? 
 
According to <a href="http://www.nytimes.com/2008/08/30/us/politics/30palin.html" target="”_blank”">an
article in today's New York Times</a>,
Alaska Governor Sarah Palin hired as her chief adviser on a natural gas
pipeline (being supplied by TransCanada) someone who had lobbied for
TransCanada's pipeline subsidiary five years earlier and then two years
later negotiated with the firm as a government employee. She said, when
asked if there was a conflict of interest, "Going on five years later,
no." 
 
Here's how <a href="http://www.adn.com/money/story/217978.html" target="”_blank”">the
Anchorage Daily News article</a>
(where that quote originally appeared) described the situation in
December 2007: 
 
More recently, in
2005, TransCanada negotiated a "conceptual" deal with Alaska on tax and
other terms for a pipeline. But this effort, as well as a competing
proposal from Conoco, BP and Exxon Mobil, died under Palin's
predecessor, former Gov. Frank Murkowski.
Now, TransCanada
is bidding once again.
The company has
worked behind the scenes to bolster its position in Alaska.
One of its
lobbyists, lawyer Tom Roberts of Washington, D.C., was chief counsel
and legislative director for Murkowski from 1985 to 1990 when Murkowski
was a senator.
For the 2005 deal,
TransCanada negotiated with Marty Rutherford, a deputy natural
resources commissioner under Murkowski. Two years earlier, Rutherford
had worked as a Juneau lobbyist for TransCanada's pipeline subsidiary,
Foothills, and made $40,200.
Today Rutherford
heads Palin's gas pipeline team.
This is one of those situations where, if the governor had come out
against a subsidy or awarded the contract to another company, no one
would have thought anything was wrong. However, she did come out
in favor of a huge, controversial subsidy to TransCanada, with the
advice of someone who had lobbied for the company. If he ever lobbied
for the company's pipeline contract, is five years enough to prevent an
appearance of impropriety, of undue corporate influence, and the
feeling among citizens that the decision was made before the governor
considered it thoroughly? 
 
The reason for limiting the revolving-door provision to one year is
that it places a serious burden on government officials and employees
if their job possibilities are too restricted, and therefore it becomes
difficult to hire qualified people in government. But does this
argument apply the other way around? Would it place a serious burden on
individuals to prevent them from being involved in making decisions
with respect to companies they have worked for or represented in the
recent past or, even moreso, matters in which they were themselves
involved? And if so, how recent must the involvement have been? 
 
Restrictions on former government officials are intended to prevent
them from misuing their office by making decisions intended to lead companies to employ them.
That is why many jurisdictions, and the City Ethics Model Code, makes
this restriction permanent with respect to particular matters on which
a public servant works. 
 
Restrictions on hiring people who have worked for such companies are
intended to prevent them from making biased decisions that seem to be
favoring their former employers. It is unlikely that a government
official would make a decision that would lead a company to employ her
years later. However, it is likely that the public would see a
decision as biased if the decisionmaker worked for that company as
recently as five years earlier. The first is essentially about misuse
of office and bribery, the second is essentially about the appearance
of impropriety in the form of undue influence and bias. 
 
It's difficult to set a time period for what appears to be improper. In
terms of a law, I would probably make the period short of five years,
except for specific matters the potential official has been involved
in, where I would make it, too, permanent. 
 
But no matter what the law says, when hiring someone in a highly visible and controversial situation where a
large contract or subsidy is involved, I would steer clear of someone
who had worked for any interested company, and certainly as recently as
five years ago. And I would not hire anyone who had ever dealt with the
particular matter. 
 
It deeply troubles me that someone who made her reputation as a whistleblower
and good government zealot would not realize that government ethics is
not simply what the law says, and that the perception of impropriety is
extremely important. If someone with her views and moral courage is
not willing, when in power, to steer clear of hiring someone who has
popped in and out of the revolving door with respect to the particular
pipeline (or to admit that this is problematic), then how can any
public official be expected to take these extralegal ethical issues
into account? 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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The Revolving Door and the Appearance of Impropriety

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