making local government more ethical

Constituent Services and Preferential Treatment Provisions

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 its manual
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 an editorial on Sunday.

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:
Wayne Le Cheminant's Essay
"Constituent Services" Can Be Another Term for Quid Pro Quo

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, City Ethics