making local government more ethical
Call for a State Municipal Lobbying Code
It may be a big holiday week and the end of the year, but there has still been some news on the government ethics front. The Boston Globe has called for the state to institute disclosure requirements for local lobbying. According to the editorial, the only rule now is to file a letter with the Boston city clerk when lobbying the Boston city council. One letter about whom is represented and what the nature of the business is. You can lobby the Boston mayor and any board or agency without notice, not to mention the other cities and counties in the state. That doesn't cut it, at least according to the Globe editorial board.

There is a lot of disagreement over whether contingency fee arrangements between client and lobbyist should be permitted. Many cities, counties, and states prohibit arrangements where lobbyists are paid only if they succeed. The principal reason is that this arrangement encourages ethical misconduct. It encourages lobbyists to do everything they can to win, which may be good in a private adversary suit, but is not appropriate in a public context, where winning involves changes in public policy or obtaining public contracts, grants, or permits.

Historically, courts have seen contingency fee arrangements relating to government action as leading to corruption and harmful to the public's trust in its government. But lawyers have argued that it works well for them, and allows more people to hire lobbyists (although there is no evidence that this actually occurs).

An investigative piece in the New York Times last week shows what can happen when lawyers being paid via contingency fee arrangements lobby state attorneys general. What the lawyers are lobbying for is to have AGs bring suits that will help their clients, and them, win their cases. These lawyers are acting as procurement lobbyists, for themselves and their clients.

According to an article yesterday on the Baltimore Brew website, a year ago Baltimore's mayor officiated at a wedding between two individuals who lobby the city government. In Las Vegas, no less.

Mayors, judges and, sometimes, other local government officials often officiate at weddings. Some ethics codes have a special exception from the gift ban that allows for this, but most make no mention of it.

The question is, should there be limits on officiating at weddings, or should government officials be allowed to use their public office to officiate at anyone's wedding, including those of lobbyists, contractors, developer, and grantees ("restricted sources")?

The last time I discussed contingency fee arrangements in local government contracting was 2007 (the focus then was on attorneys). A front-page story in today's New York Times shows clearly that I have not been giving this topic the attention it deserves.

Allegations have been made by the U.S. Attorney for the Southern District of New York (disclosure: I worked for this office as a law school intern back in 1977-78) that a New York City department and an IT contractor were engaged in defrauding Medicaid over a five-year period, at a cost of tens of millions of dollars. With respect to government ethics, the central paragraph of the article is as follows:
Gretchen Morgenson's investigative piece in yesterday's New York Times is extremely disturbing. According to her research, local and state government pension funds have taken huge risks, and then allowed them to be hidden from the public, by signing agreements with private equity firms that make their terms confidential, including (1) their high fees and questionable clawback provisions, (2) their provisions for investors to be charged for litigation losses or settlements by the equity firm, and sometimes (3) provisions allowing equity firm general partners to not have a fiduciary duty to the pension funds.

An article today in the New York Times describes a situation that sheds light on pay to play. It involves the Westchester County (NY) county executive, who is getting special scrutiny because he is running for governor and has, throughout his career, as well as in this election, been openly critical of pay to play. He is being accused of hypocrisy, but it may just be that he does not really understand what pay to play is, why it is problematic, or how to prevent it.

According to critics, donors who have given the Westchester county executive $900,000 in campaign contributions over the last four years have received $709 million worth of county work. The executive's campaign "scoffed at any causality, noting that contracts must be competitively bid and approved by legislators."

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