making local government more ethical

Summer Reading: Richard Painter on Ethics Reform I

Richard W. Painter's Getting the Government America Deserves: How Ethics Reform Can Make a Difference (Oxford U.P., 2009) may be about the federal executive branch ethics program, but this excellent book also has a lot to offer to local government ethics. This is the first of three blog posts about this book, focusing on Painter's recommendations for ethics reform and how they could be applied to local government ethics programs.

Contractors et al.
Painter notes that those who oppose ethics program jurisdiction over government contractors argue that it is unnecessary because contract employees are not decisionmakers, company ethics policies are adequate, it is obvious when contract employees try to steer decisions to favor their employer's interests, and ethics oversight over contractors is burdensome and costly.

Citing a General Accounting Office report from 2008, Painter argues that contract employees have influence, even when they do not make decisions (and, I would add, they do sometimes make decisions), and that it is not obvious when they provide biased information (or, I would add, when they act in ways that benefit themselves or their employer).

Painter sums up the problem in the following sentence:  "Unless form is to prevail over substance, persons doing government work, regardless of their employer, should be subject to ethics rules." Painter advocates what he calls "default rules," that is ethics rules that apply to contractors, but which can be modified in any particular contract, "providing the contracting officer accepts responsibility for the change and explains it in writing to a supervisor and an agency ethics officer." I would add that such a change in ethics rules should be approved from someone in the ethics program, following waiver procedures.

Painter believes that there should also be someone to assure compliance with the rules, and that this someone should not be procurement officials, but rather the ethics program (which would need an increase in its budget to do the job adequately).

It's equally important that local ethics programs have jurisdiction over contractors. But not just contractors. Also those seeking permits, grants, and other special benefits from the government. Those on both sides of government transactions should be subject to the same requirements, including disclosure, and should be able to seek the same advice and get the same training.

Opt-in Rules
My favorite among Painter's recommendations is one to create a system of "enforceable campaign promises" that become embodied in opt-in ethics rules that are more stringent than the minimum requirements imposed by ordinary ethics rules. For example, a candidate who says she will not participate in any matter that may benefit anyone who has made more than $300 in aggregate campaign contributions to her will be held to that promise by the ethics program.

This brings competition into government ethics. It is a great way to create a race to the top. Not only will candidates be held to their promises, but they are likely, when elected, to turn their promises into ethics rules that apply to everyone, since they will be held to them anyway. Yes, even selfishness can be employed to improve a government's ethics environment.

Requirement to Seek Advice or Approval
Painter points out that federal officials and employees are required to seek ethics advice or approval before engaging in certain conduct, such as attendance at an event. Such a requirement is extremely rare at the local level.

Since it is so difficult for many people to bring themselves (or convince their colleagues) to seek ethics advice, even though they automatically seek legal or engineering advice, I argue in my book Local Government Ethics Programs for a more general requirement to seek advice. But I realize that this is highly unlikely. A good compromise would be to require officials to seek advice, approval, or a waiver in certain situations, such as whenever someone other than a close family member offers or gives them a gift, a job, or work, or invites them to an event.

Pre-Employment
Painter recommends "stricter rules on persons coming into government from the private sector." Revolving door laws often provide adequate guidance for those leaving government for the private sector, but too rarely do they deal with the movement of the door in the opposite direction. Conflicts should be dealt with before an official takes office.

The White House has its own ethics office (Painter headed it under George W. Bush). One of its most important jobs is to look at a nominated appointee's recent employment, business and family relationships, spousal employment and relationships, and investments. The goal of this review is a written "ethics agreement" among the nominee, the agency, the White House, and the ethics program. It usually takes the form of a letter from the nominee to the agency ethics officer clarifying how ethics rules would apply to the nominee's particular situations, including specific steps the nominee will take to deal responsibly with these situations. The letter is also sent to the Senate, which must approve the appointment.

This would be a great idea for high-level appointees in local governments, including members of important boards and commissions. Such a letter would be sent to the council with respect to the nominees it is required to approve.

Painter makes an important observation about such ethics agreements:
Ethics agreements that require only what the law requires, and no more, may not address the appearance of outside influence that could endanger Senate confirmation and arouse public suspicion.
In other words, as with ethics advice, those working on an ethics agreement should acknowledge that ethics provisions are minimum requirements and that more is expected of a high-level nominee.

Painter recognizes that many officials will worry that an ethics agreement that exceeds minimum requirements sets a dangerous precedent, and that the legislative body may ask why other nominees with similar conflict situations have not agreed to similar solutions. But this is not the right attitude. Nominees who offer to do more than necessary should be lauded for doing this, so that others will be more likely to do so in the future, not due to legal precedent, but rather to handle their conflict situation responsibly.

One particular pre-employment problem Painter points out is the "extraordinary payments" made by companies to employees who are about to enter government service. These are effectively a reward in advance for helping the company from within the government. This kind of thing is far less likely to occur at the local level, but there are businesses that can receive serious help from within a local government, for example, law firms (and their clients) and realtors (and their clients). These relationships should be discussed, along with ways to prevent problems that may arise from them.

Post-Employment
With respect to post-employment issues, Painter recommends an "ex-post review" some time after a government official or employee takes a job with a company that does business with or is regulated by the government, to see what role that official or employee has played. This would be equally as valuable at the local level. In some cases, Painter wrote, decisions that are not irreversible may have to be reconsidered.

Part 2 of this three-part post
Part 3 of this three-part post

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