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Interesting City Lobbyist/County Election Board Member Conflict
Wednesday, January 29th, 2014
Robert Wechsler
When a lawyer decides to represent a private client, she does not
give up her right to vote or petition governments on her own behalf.
But what about when a lawyer decides to represent a public client,
especially as a lobbyist? Does such a lawyer give up her right to
vote on issues relating to the city government (assuming she sits on
another government's board) or petition a government on behalf of her own
beliefs?
These questions arise from a case in Cincinnati, where a city lobbyist also sat on the county elections board. According to an article this week on cincinnati.com, the city government strongly opposes moving an early-voting site out of the city's downtown, but the lobbyist supports the move. The mayor asked the lobbyist to withdraw by abstaining from the elections board vote. Instead, the lobbyist withdrew from his lobbying contract, which had paid him nearly $9,000 a month.
What makes the situation especially interesting is the fact that the lobbyist's vote would ensure a tie that would then be broken by the Secretary of State, who also appears to support moving the early-voting site out of the downtown, where it is closest to those who engage in early voting. Were he to have kept his lobbyist position and voted on the elections board, it would have been the lobbyist's job to lobby the Secretary of State, to try to get him to change his mind. But (1) the lobbyist would have had to give up his right to petition the Secretary of State as a citizen and elections board member who supported the move, and (2) the lobbyist would not have had his heart in it, and would probably not have done a competent job for the city. In short, he would have been too conflicted to act as a lobbyist.
Once before, there had been a conflict (regarding a ballot issue on city pensions), and the lobbyist had chosen not to vote as a county elections board member. This created the reasonable expectation on the part of the city that, if another conflict arose, he would do the same thing. If the lobbyist wasn't sure that is how he would handle another conflict, he should have considered alternatives and, after seeking advice from the state ethics commission, have told the city and elections board what he would do in the future. Then, the city government would have not have had the reasonable expectation the lobbyist had allowed it to have.
The lobbyist could have chosen to simply withdraw from the matter totally, both as lobbyist and as elections board member. That would have been the advice I would have given him, if he had failed to plan what to do. By quitting as the city's lobbyist to make a single vote that was important to him, he placed his personal political views above those he had pledged to push on behalf of the city.
This might seem to be a very unusual situation, but in fact, it is part of being a lobbyist. As Zephyr Teachout writes in her recent essay, "The Forgotten Law of Lobbying," (which I will soon be reviewing in this blog), "the lobbyist is paid to represent political views not held by the lobbyist. This is unlike a lawyer-client relationship, because in general in a lawyer-client relationship, the lawyer has no separate, independent civic relationship to the private matter. In a lobbyist-client relationship, the lobbyist, by virtue of being a citizen, has a distinct relationship to what he himself might believe. He is selling his own citizenship, or one of the obligations of his own citizenship, for a fee. In this sense, agreeing to work, for pay, on political issues is more akin to selling the personal right to vote than selling legal skills."
This sale occurs whether one is lobbying for a government or for a business. Because of this, some lobbyists do limit their work to those who share their political views. But in local government, it's rarely about political views, although in this case it is (really more partisan than political, and perversely so).
Like most lobbyists, when this lobbyist took his job, he most likely failed to consider what he was giving up, and how that might lead to problems down the line, when suddenly he realized he was giving up something very important to him. He had given up certain rights from the start, but he failed to recognize this. He should, therefore, have sacrificed this personally important partisan vote, and then decided what to do thenceforth. That would have been the most responsible thing to do. Doing so, and explaining why, might have alerted other lobbyists about what they have given up, allowing them to make responsible decisions in advance.
Robert Wechsler
Director of Research-Retired, City Ethics
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These questions arise from a case in Cincinnati, where a city lobbyist also sat on the county elections board. According to an article this week on cincinnati.com, the city government strongly opposes moving an early-voting site out of the city's downtown, but the lobbyist supports the move. The mayor asked the lobbyist to withdraw by abstaining from the elections board vote. Instead, the lobbyist withdrew from his lobbying contract, which had paid him nearly $9,000 a month.
What makes the situation especially interesting is the fact that the lobbyist's vote would ensure a tie that would then be broken by the Secretary of State, who also appears to support moving the early-voting site out of the downtown, where it is closest to those who engage in early voting. Were he to have kept his lobbyist position and voted on the elections board, it would have been the lobbyist's job to lobby the Secretary of State, to try to get him to change his mind. But (1) the lobbyist would have had to give up his right to petition the Secretary of State as a citizen and elections board member who supported the move, and (2) the lobbyist would not have had his heart in it, and would probably not have done a competent job for the city. In short, he would have been too conflicted to act as a lobbyist.
Once before, there had been a conflict (regarding a ballot issue on city pensions), and the lobbyist had chosen not to vote as a county elections board member. This created the reasonable expectation on the part of the city that, if another conflict arose, he would do the same thing. If the lobbyist wasn't sure that is how he would handle another conflict, he should have considered alternatives and, after seeking advice from the state ethics commission, have told the city and elections board what he would do in the future. Then, the city government would have not have had the reasonable expectation the lobbyist had allowed it to have.
The lobbyist could have chosen to simply withdraw from the matter totally, both as lobbyist and as elections board member. That would have been the advice I would have given him, if he had failed to plan what to do. By quitting as the city's lobbyist to make a single vote that was important to him, he placed his personal political views above those he had pledged to push on behalf of the city.
This might seem to be a very unusual situation, but in fact, it is part of being a lobbyist. As Zephyr Teachout writes in her recent essay, "The Forgotten Law of Lobbying," (which I will soon be reviewing in this blog), "the lobbyist is paid to represent political views not held by the lobbyist. This is unlike a lawyer-client relationship, because in general in a lawyer-client relationship, the lawyer has no separate, independent civic relationship to the private matter. In a lobbyist-client relationship, the lobbyist, by virtue of being a citizen, has a distinct relationship to what he himself might believe. He is selling his own citizenship, or one of the obligations of his own citizenship, for a fee. In this sense, agreeing to work, for pay, on political issues is more akin to selling the personal right to vote than selling legal skills."
This sale occurs whether one is lobbying for a government or for a business. Because of this, some lobbyists do limit their work to those who share their political views. But in local government, it's rarely about political views, although in this case it is (really more partisan than political, and perversely so).
Like most lobbyists, when this lobbyist took his job, he most likely failed to consider what he was giving up, and how that might lead to problems down the line, when suddenly he realized he was giving up something very important to him. He had given up certain rights from the start, but he failed to recognize this. He should, therefore, have sacrificed this personally important partisan vote, and then decided what to do thenceforth. That would have been the most responsible thing to do. Doing so, and explaining why, might have alerted other lobbyists about what they have given up, allowing them to make responsible decisions in advance.
Robert Wechsler
Director of Research-Retired, City Ethics
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