making local government more ethical
There are several problems with the settlement the Massachusetts AG reached last week with a lobbying firm that the AG alleged had entered into an illegal contingency fee agreement with a hospital. According to the AG's press release, the lobbying firm would be paid a percentage of funds paid to the hospital pursuant to legislation the lobbyist would try to help get passed.

The Prosecutor
The biggest problem is the office that prosecuted the case. Because the state ethics commission is not given authority to pursue allegations under the lobbying code, such allegations become political footballs and undermine trust that they are being fairly pursued. In this case, the politics involves an elected official (the AG) who is running for governor and has received campaign contributions from members of the lobbying firm, including one $500 contribution weeks before the settlement was reached, according to a Boston Herald article this week.

I believe that the best solution to the problem of having lobbyists and others seeking special benefits from the government sitting on government advisory boards is to get rid of these advisory boards. Conflicts involving these boards are important because, although they are "merely advisory," their recommendations are often accepted, and their members are often selected (or seen to be selected) in order to reach a particular conclusion. The membership of such boards is difficult for well-meaning officials to balance so that the board's recommendations do not reflect the self-serving views of one side or one industry, usually one that has a financial interest in the outcome. Equally as serious, it appears to the public that the recommendations of these boards is biased. That is not a good basis for government decision-making.

In 2010, the Obama administration tried to solve this government ethics problem by prohibiting registered lobbyists from sitting on federal government advisory boards. The 130 lobbyists who sat on the 16 Industry Trade Advisory Committees (ITAC), which make recommendations concerning U.S. trade policy, filed a suit to have this prohibition declared unconstitutional. Their suit was dismissed by a federal district court, and the lobbyists appealed.

The appellate court decision in the case of Autor v. Pritzker (attached; see below) came out in January and, in response, this week the Office of Management and Budget (OMB) made a change in the policy (attached; see below) that will allow lobbyists to sit on advisory boards in their representative capacity (like employees for companies), but not in their individual capacity (as individuals who happen to be lobbyists).

The Stamford (CT) Advocate's Angela Carella wrote an excellent column on Saturday about a post-employment (also known as revolving door) situation in Stamford. Entitled "In Ethical Questions, Appearances Matter," the column looks at the many problems with a school board member taking a job with a company that manages the school board's construction projects. He resigned his position the day before he accepted the job.

When officials take jobs with businesses their agency oversees, they are seen as using their government service as a stepping stone to help themselves as well as the firms that do business with the government, a win-win deal for everyone but the public. The revolving door puts a question mark at the end of everything the official did in office: what was he giving away in order to get a personal reward? When he acted, advocated, and voted, was he thinking of his future or what’s best for the public?

One of Carella's most astute observations is that the situation was not cured by the school board member's decision not to attend a meeting where the school board voted on a 42% increase in the contractor's fee (partly to create the position the school board member has filled). One reason is that, despite withdrawing from the vote, he did not withdraw from participation in the matter. "[H]e had the opportunity in the months before — particularly as head of the Operations Committee that oversees [the contractor] — to influence board members' views of [the company's] performance as school facilities manager."

An interestting debate about lobbying and advisory groups can be found on the Austin Bulldog website. Late last week, the Bulldog published an article about an ethics complaint filed by the president of the Austin Neighborhoods Council (ANC) against an appointed member of the Land Development Code Advisory Group (CAG). The complaint alleges that the CAG member is an unregistered lobbyist for a real estate consulting company, and that the resolution establishing CAG says that lobbyists or employees of lobbyists, registered or not, may not be members. The CAG member insists she has never lobbied, nor has her consulting firm.

There are two important issues here:  the definition of lobbyist and the membership of advisory groups. I have dealt with the latter issue in three blog posts:  a Fort Worth situation, "Making Use of Expertise," and "Alternatives to Allowing Conflicted Individuals to Sit on Advisory Boards." So I won't go into this issue here, except to say that there is no reason in the world to limit the prohibition on membership to lobbyists without limiting it equally to anyone directly or indirectly seeking special benefits from the government. There has to be a balancing of expertise with conflict of interest, and conflicts of interest are not limited to lobbyists.

The District of Columbia's former chief administrative law judge settled with the D.C. Board of Ethics and Government Accountability (BEGA) this week (the settlement agreement is attached; see below). The misconduct she admitted to included her hiring of a business partner without going through the standard hiring procedures, and contracting with a company owned by the business partner's boyfriend (see my detailed discussion of the charges against her).

The reason this is not an update to the earlier blog post is the way in which the judge's attorney mischaracterized the charges after the settlement was reached. According to an article in the Washington Post, the attorney characterized the charges she admitted to in the settlement as “technical violations relating only to the appearance of conflict of interest, rather than an actual conflict. ... We are pleased that our client has again been vindicated as part of this process. ... Given that all of the serious charges relied upon by Mayor Gray to discharge Walker are being dismissed, . . . Walker intends to continue to pursue her appeal to overturn Mayor Gray’s imprudent disciplinary decision.”

The big news in the government ethics world today is the investigative piece in the New York Times about New York governor Andrew Cuomo's interference in the work of the Moreland Commission he created to investigate corruption in the state government and to recommend reforms to prevent such corruption (see my blog post on its recommendations).

Not only did Cuomo and his secretary meet with and contact the commission co-chairs, telling them not to go after certain groups associated with the governor. In addition, the commission's executive director, appointed by the governor, read the e-mails of commission members and staff, and reported to the governor's office, providing confidential information for the governor's personal and political benefit.