The Purposes Behind Revolving Door Provisions

An interesting case in Iowa raises questions about the purposes behind post-employment, or "revolving door," provisions, including whom they are supposed to protect and why.

According to an Associated Press article yesterday, a former chief of staff and general counsel to Iowa's then governor is representing Muscatine, IA citizens in their suit against Grain Processing Corp. (GPC) for long-standing pollution in the town. GPC has filed a motion to disqualify the attorney, and other attorneys he brought into the case, on the grounds that the attorney dealt with GPC's pollution when he was a state official. GPC has also filed a complaint with the Iowa Ethics and Campaign Disclosure Board which, according to an article in Monday's Iowa City Press-Citizen, will be considering the matter today.

The relevant Iowa law is as follows:

§68B.7 Prohibited Use of Influence.
1. A person who has served as an official ... shall not within a period of two years after the termination of such service or employment receive compensation for any services rendered on behalf of any person ... in relation to any case, proceeding, or application with respect to which the person was directly concerned and personally participated during the period of service or employment.

This rule seems very cut and dry. For two years after leaving public service, an official cannot make money by rendering services that have to do with a case he was involved in.

But a rule such as this was passed for a purpose, in fact for several purposes, only one of which can be determined from the subsection's title "Prohibited Use of Influence." So it's important to look at the purposes in order to determine whether the rule is relevant to this particular situation.

Preferential Treatment
Revolving door provisions are intended to prevent officials and employees from giving preferential treatment to individuals and entities while in office, in order to get jobs or contracts with them after they leave public service. They are also intended to make it harder for individuals and entities to use a job offer to get this preferential treatment or unfair advantage. In terms of appearance to the public, post-employment work opportunities are indistinguishable from bribes.

There is no reason to believe that the citizens of Muscatine were getting preferential treatment from the attorney while he was an official, so that they would hire him as their lawyer. And there is no reason to believe that the citizens of Muscatine offered to hire the attorney if he pushed their cause during his time in the government. In fact, it looks like it was the attorney's idea to try to form a class action suit.

Influence
The subsection's title speaks of "influence," and this is indeed one of the purposes of a revolving door provision. Such a provision is intended to prevent individuals and entities from obtaining undue influence by hiring former government officials and employees in order to make use, for their benefit, of the former official's personal relationships with members of governmental agencies and boards.

A suit against a polluter brought by citizens of the town it pollutes does not require the involvement of state officials. In fact, state actions against GPC have already been completed. There is no need for the attorney to use his influence. This is not the sort of situation contemplated by the provision, at least what appears from the title to be its principal purpose.

Using Public Service as a Stepping Stone
The revolving door between government and the businesses that benefit from government contracts, grants, and permits sends the message to citizens that people run for office and accept government appointments in order to win the corporate lottery, that is, they use their time in office, and their power over government’s transactions with business, to ensure themselves well-paid jobs when they leave government. This undermines the public’s confidence in its officials putting the public interest ahead of their own interest in post-government work. Officials are seen as using their government service as a stepping stone to help themselves and the firms that do business with the government, a win-win deal for everyone but the public.

This is the only principal purpose of revolving door provisions that is relevant to this situation. If the attorney wins the class action against GPC, he could make a great deal of money. He learned about the situation while in public service. But the situation was public. In fact, the state's action against GPC showed a spotlight on the pollution situation. Others could have put together a class action while the attorney was still working for the governor. His position gave him no advantage, except to the extent the citizens of Muscatine might have trusted him more due to his public service.

Confidential Information
It is possible that the attorney had access to confidential information that could be used to help his clients and, indirectly, himself. In fact, GPC is making this argument in its motion to disqualify the attorney (based on one of the Rules of Professional Conduct). The attorney says that all the information he had access to in his work for the governor was public information. Pollution information should, in any event, be public. After all, there were public actions against GPC, which the attorney was not involved in. These would most likely have made all the information public.

But let's assume there was some information that was considered confidential and which could, if used in the suit against GPC, benefit the attorney. This information would also, and more directly, benefit the citizens of Muscatine. This raises the question whether information that is held confidentially for the public interest should be kept confidential even if its secrecy hurts the public as specifically as it would in this case. This would be a difficult argument to make, especially in a matter that involves not private business, but public pollution.

Conclusion
Although beginning his Response by pointing out how the situation is nothing like the sort of influence peddling the revolving door provision was intended to prevent, the attorney's argument is focused on the language in the revolving door provisions, particularly that he was not "directly concerned and personally participated" in any "case, proceeding or application."

But even if he had been directly concerned in a case against GPC, this is not the sort of situation the revolving door provision was inteded to deal with. It is important that ethics commissions and courts go beyond the language of an ethics code to consider whether it could have been intended for the purpose at hand:  an attempt to disqualify attorneys who put together a class action for a town that has been heavily polluted by a company's plant.

The door did not revolve here. No one gained preferential treatment, no one peddled his influence, no confidential information was misused for an individual or company's benefit, and even though the attorney might make a lot of money out of the suit, the primary beneficiaries are the citizens of a town that has suffered for many years from one plant's pollution.

Robert Wechsler
Director of Research-Retired, City Ethics

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