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An Ethics Challenge and a Unusual Approach to Pay-to-Play
Saturday, September 5th, 2009
Robert Wechsler
Some news in Greensboro, NC led me to a blog post on old news in
Greenburgh, NY, so here's the new news and the old news about two
cities with nearly the same name.
In Greensboro, NC, a council candidate has thrown down a challenge to fill out and post online the state financial disclosure form. It's not quite appropriate, since all its references are to the state, but it does require a good deal of disclosure. At least one mayoral candidate has risen to the challenge. A local blogger wonders aloud about certain candidates and what they might have to hide.
Two years ago, Greenburgh, NY took on pay-to-play with unusual campaign financing provisions, according to an article in the New York Times. The ethics code provisions made it "illegal for public officials to accept campaign contributions from developers, contractors or their lawyers or agents for a year before and a year after an application is reviewed by a town board." Previously, officials could not solicit such contributions, but it's hard to prove solicitation. It's far easier to prove receipt.
The Greenburgh Board of Ethics website has a page that sets out in clear language for potential campaign contributors all the limitations:
The Times article refers to a "registry of prohibited contributors," which would be helpful to officials, but I could not find any mention of such a registry in the ethics code or on the website. Prohibiting contributions from those who intend to make an application in the next twelve months deals with an important problem, but there is nothing that requires officials to give back contributions when they learn that a contributor was an applicant-to-be. So there is no guidance in the law about how this part of the scheme can be followed or enforced.
There are two other problems with the policy. It doesn't limit contributions to candidates who are not yet officials. This allows contractors and applicants to get the support of non-incumbents, and it isn't fair to incumbents.
The policy also allows contributions to be effectively laundered through party town committees, so that applicants and contractors can indirectly give the same contributions they could give before.
The Times article quotes a local developer as saying, “A political contribution from a developer who has a project before the town is tantamount to a bribe, and in my opinion, you shouldn’t have to bribe anyone to get a good project passed.” We need more developers like this!
It's also unusual to prohibit government employees from making campaign contributions, because this is generally seen as a freedom of speech problem. The issue here is one of coercion, and it is therefore usually handled by prohibiting solicitation. But it is common knowledge that local government employees don't have to be approached in any way to get them to make contributions. They know it's expected, and they do it without asking.
In fact, in many towns and smaller cities, the majority of contributors are government employees, contractors, and applicants. Without their contributions, fundraising would be very difficult.
Robert Wechsler
Director of Research-Retired, City Ethics
---
In Greensboro, NC, a council candidate has thrown down a challenge to fill out and post online the state financial disclosure form. It's not quite appropriate, since all its references are to the state, but it does require a good deal of disclosure. At least one mayoral candidate has risen to the challenge. A local blogger wonders aloud about certain candidates and what they might have to hide.
Two years ago, Greenburgh, NY took on pay-to-play with unusual campaign financing provisions, according to an article in the New York Times. The ethics code provisions made it "illegal for public officials to accept campaign contributions from developers, contractors or their lawyers or agents for a year before and a year after an application is reviewed by a town board." Previously, officials could not solicit such contributions, but it's hard to prove solicitation. It's far easier to prove receipt.
The Greenburgh Board of Ethics website has a page that sets out in clear language for potential campaign contributors all the limitations:
- The Greenburgh Code of Ethics prohibits
Town officials from accepting gifts or contributions from certain
persons in particular situations. For the benefit of potential donors,
the following lists the common situations in which gifts and
contributions may NOT be accepted by Town officials. Town officials may
not accept a gift or contribution from you:
1. If you are a Town employee, or
2. If you have an application pending before the Town or any Town agency, or
3. If you had an application pending during the prior 12 months, or
4. If you intend to make an application within the next 12 months, or
5. If you have a contract with the Town, or
6 If you are seeking employment or other material financial benefit from the Town.
The restrictions apply to individuals and legal entities and to affiliates and professional advisors. Furthermore, no gift or contribution may be accepted on Town property.
The Times article refers to a "registry of prohibited contributors," which would be helpful to officials, but I could not find any mention of such a registry in the ethics code or on the website. Prohibiting contributions from those who intend to make an application in the next twelve months deals with an important problem, but there is nothing that requires officials to give back contributions when they learn that a contributor was an applicant-to-be. So there is no guidance in the law about how this part of the scheme can be followed or enforced.
There are two other problems with the policy. It doesn't limit contributions to candidates who are not yet officials. This allows contractors and applicants to get the support of non-incumbents, and it isn't fair to incumbents.
The policy also allows contributions to be effectively laundered through party town committees, so that applicants and contractors can indirectly give the same contributions they could give before.
The Times article quotes a local developer as saying, “A political contribution from a developer who has a project before the town is tantamount to a bribe, and in my opinion, you shouldn’t have to bribe anyone to get a good project passed.” We need more developers like this!
It's also unusual to prohibit government employees from making campaign contributions, because this is generally seen as a freedom of speech problem. The issue here is one of coercion, and it is therefore usually handled by prohibiting solicitation. But it is common knowledge that local government employees don't have to be approached in any way to get them to make contributions. They know it's expected, and they do it without asking.
In fact, in many towns and smaller cities, the majority of contributors are government employees, contractors, and applicants. Without their contributions, fundraising would be very difficult.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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- Robert Wechsler's blog
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