making local government more ethical

Officials Soliciting Charitable Contributions from People Doing Business with Local Government

Officials soliciting charitable contributions from those doing business before them is unethical conduct too many ethics codes allow, often expressly. Miami-Dade County has in its ethics code what appears at first to be a very reasonable exception to the definition of a gift:
    §2-11.1(2)(2)(g) Gifts solicited by Commissioners on behalf of any nonprofit organization for use solely by that organization where neither the Commissioner nor his or her staff receives any compensation as a result of the solicitation. ... As used in this subsection, “compensation” means any money, gift, favor, political contribution, thing of value or other financial benefit.
There are several problems here, which have forced a criminal trial of a city commissioner who allegedly asked someone with business before her body to give a $25,000 contribution to a charity she was involved with, according to an article in yesterday's Miami Herald.

Most important, this exception makes it appear that local legislators do not understand that requests for contributions to their favorite charities, although not of direct financial benefit to the requesting official, is in fact a misuse of office to get a desired result. It's pay-to-play with a velvet hand extended.

The exception only deals with the situation where the commissioner or staff member is soliciting for the charity on a commission basis. And yet would it be wrong for a commissioner to work as a charity solicitor, as long as she did not approach anyone doing business with or working for the city?

This points to a second major problem:  Miami-Dade's gift provision refers to gifts from anyone, not just from people with interests in the city (see the City Ethics Model Code provision for language that applies only to those doing business with the city). When you define a gift more narrowly, there is no reason to make an exception for charitable contributions, because officials should not be soliciting anything from those doing business with the city, especially with their own body or agency.

The final problem with the Miami-Dade exception is that its definition of "compensation" is limited to direct financial benefits. But officials are just as likely to solicit gifts for others, especially family members and their favorite charities. And there are also important favors that can be asked, such as getting a child into a school, or giving someone a valuable job recommendation. Not every gift is a direct financial benefit, or a financial benefit at all.

The result of the weaknesses of the Miami-Dade ethics code is that when a commissioner was caught (allegedly) soliciting a large charitable contribution from a developer, it required a bribery trial, including proof that the solicitation and gift were intended to get particular results. This is very difficult to prove, and thankfully is not an issue in ethics enforcement.

The gift was made in 2006. Had this been an ethics matter, it would have been dealt with years ago, and at far less expense. In fact, had the ethics code anticipated this sort of problem, the gift would most likely not have been solicited.

In the criminal trial, as it turns out, the developer testified that the commissioner said nothing expressly about a quid pro quo. Here's the testimony:
    "The fact that you had a matter pending in front of the commission at that particular moment, was that raised at all by the person you talked to in the commissioner's office?'' Miami-Dade prosecutor Richard Scruggs asked.

    "Not at all, no."

    "But yet, I could assume it would be fair to say that it must have been on your mind, because you turned around and called [partner] Mr. [Ricardo] Glas . . . It was actually his project,'' Scruggs asked.

    "I'm ashamed to tell you that, yes,'' Codina replied. "I'm ashamed to tell you while I gave her the benefit of the doubt, it was not one of my finer moments, Mr. Scruggs.''
The article continues with the developer's testimony: "Codina said he made the donation to a charity affiliated with [the commissioner] because it appeared to be a good cause -- and because he was loathe to turn down the request. 'I didn't see a reason to poke her in the eye and tell her no,' he said."

This is how pay-to-play works. There doesn't have to be an express quid pro quo. Everyone knows the rules. And it's not about making the gift, it's about the double negative:  there might be a serious cost to not making the gift. The benefit of a charitable gift is that you can tell yourself it's for a good cause, even when you know it's effectively a bribe.

Indirect, unexpressed bribes are hard to prove in court, which is why they are popular. But indirect, unexpressed bribes can be prohibited by ethics codes.

As for favorite charities, they usually are legitimate, but in this case, it appears that the charity was very close not only to the commissioner's heart, but to the rest of her, as well. According to the Herald article, the charity wasn't formed until six months after the developer made his contribution, and the charity was run through the commissioner's commission office. And $2,500 of the developer's money went toward an "elegant cocktail party" for the commissioner.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548
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