making local government more ethical
The last thing the U.S. needs is another partisan good government group. Unfortunately, according to an article in Politico last week, Citizens for Responsibility and Ethics in Washington (CREW), an important ethics watchdog at the federal level, has named David Brock as the chair of its board, and Brock has announced that the organization will be coordinated with his Democratic Party-oriented organizations, including Media Matters, American Bridge, and the American Independent Institute.

CREW will also be supplemented by an "overtly partisan watchdog group" called the American Democracy Legal Fund, which will bring complaints.

Good government is not a partisan cause and should not be treated as if it were partisan. I have found absolutely no difference in conduct based on party affiliation, except that I can't recall writing about much misconduct by non-affiliated and minor party officials, mostly because few non-affiliated and minor party officials are able to get into a position to engage in serious misconduct. That may be the biggest bipartisan ethics problem there is, although it is usually treated as an election law issue (it is much more, because partisanship affects the appointment of government officials and employees, as well as aspects of a government's ethics environment.

There are several problems with the settlement the Massachusetts AG reached last week with a lobbying firm that the AG alleged had entered into an illegal contingency fee agreement with a hospital. According to the AG's press release, the lobbying firm would be paid a percentage of funds paid to the hospital pursuant to legislation the lobbyist would try to help get passed.

The Prosecutor
The biggest problem is the office that prosecuted the case. Because the state ethics commission is not given authority to pursue allegations under the lobbying code, such allegations become political footballs and undermine trust that they are being fairly pursued. In this case, the politics involves an elected official (the AG) who is running for governor and has received campaign contributions from members of the lobbying firm, including one $500 contribution weeks before the settlement was reached, according to a Boston Herald article this week.

Ferguson, MO — where Michael Brown was recently killed by a police officer, and the police department's first reaction was to protect the officer and keep the facts secret — is an unusual case of a local government where a scandal is likely to actually increase rather than decrease citizen participation in government.

There is an interesting column today in Vox about why a primarily black city has a nearly all-white government. The article quotes Prof. Jeff Smith, formerly a St. Louis-area state senator, explaining the situation (which he says is relatively common to suburbs where minorities have moved in recent decades) as follows:
Longtime white residents have consolidated power, continuing to dominate the City Councils and school boards despite sweeping demographic change. They have retained control of patronage jobs and municipal contracts awarded to allies.

The North County Labor Club, whose overwhelmingly white constituent unions (plumbers, pipe fitters, electrical workers, sprinkler fitters) have benefited from these arrangements, operates a potent voter-turnout operation that backs white candidates over black upstarts. The more municipal contracts an organization receives, the more generously it can fund re-election campaigns. Construction, waste and other long-term contracts with private firms have traditionally excluded blacks from the ownership side and, usually, the work force as well.
Most people believe that lobbyists are guns hired to influence government officials, and most lobbying laws reflect this by applying only to those who lobby, not to the clients for whom they lobby. Unlike most laws, lobbying laws focus on agents rather than their principals.

This problem extend beyond these jurisdictions. When business executives who work in cities and counties that require only agents to register as lobbyists seek work in jurisdictions that require principals to register as well, they feel like they've been unfairly fooled when they are told they've violated the lobbying law.

According to an article in the Miami Herald this week, this is what happened when an Atlanta-based developer was fined for not registering as a lobbyist when he communicated with officials with respect to a bid on convention center work in Miami-Dade County.

I believe that the best solution to the problem of having lobbyists and others seeking special benefits from the government sitting on government advisory boards is to get rid of these advisory boards. Conflicts involving these boards are important because, although they are "merely advisory," their recommendations are often accepted, and their members are often selected (or seen to be selected) in order to reach a particular conclusion. The membership of such boards is difficult for well-meaning officials to balance so that the board's recommendations do not reflect the self-serving views of one side or one industry, usually one that has a financial interest in the outcome. Equally as serious, it appears to the public that the recommendations of these boards is biased. That is not a good basis for government decision-making.

In 2010, the Obama administration tried to solve this government ethics problem by prohibiting registered lobbyists from sitting on federal government advisory boards. The 130 lobbyists who sat on the 16 Industry Trade Advisory Committees (ITAC), which make recommendations concerning U.S. trade policy, filed a suit to have this prohibition declared unconstitutional. Their suit was dismissed by a federal district court, and the lobbyists appealed.

The appellate court decision in the case of Autor v. Pritzker (attached; see below) came out in January and, in response, this week the Office of Management and Budget (OMB) made a change in the policy (attached; see below) that will allow lobbyists to sit on advisory boards in their representative capacity (like employees for companies), but not in their individual capacity (as individuals who happen to be lobbyists).

The Stamford (CT) Advocate's Angela Carella wrote an excellent column on Saturday about a post-employment (also known as revolving door) situation in Stamford. Entitled "In Ethical Questions, Appearances Matter," the column looks at the many problems with a school board member taking a job with a company that manages the school board's construction projects. He resigned his position the day before he accepted the job.

When officials take jobs with businesses their agency oversees, they are seen as using their government service as a stepping stone to help themselves as well as the firms that do business with the government, a win-win deal for everyone but the public. The revolving door puts a question mark at the end of everything the official did in office: what was he giving away in order to get a personal reward? When he acted, advocated, and voted, was he thinking of his future or what’s best for the public?

One of Carella's most astute observations is that the situation was not cured by the school board member's decision not to attend a meeting where the school board voted on a 42% increase in the contractor's fee (partly to create the position the school board member has filled). One reason is that, despite withdrawing from the vote, he did not withdraw from participation in the matter. "[H]e had the opportunity in the months before — particularly as head of the Operations Committee that oversees [the contractor] — to influence board members' views of [the company's] performance as school facilities manager."

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