City Related

The New York State Commission on Public Integrity released a report yesterday on the allegations relating to the Spitzer Administration's attempts to gather and make public the travel abuses of the Senate Majority Leader, in order to tarnish his reputation. See the New York Times article.

There are two issues I would like to focus on, both of which involve government employees (a police superintendent and a lawyer) doing private work for public officials.

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According to a recent article in the San Diego Union-Tribune, the chair of one of the city's economic development commissions made an unusual deal with, and a half-million-dollar instant profit from (the purchase and sale transactions were filed at the same time), the commission three years before he became a member.

Assuming this article is accurately describing the situation, this creates an unusual conflict of interest.  Clearly, the commission chair was not using his position to give himself a financial benefit, because he obtained the financial benefit three years before he joined the commission.  He also did nothing that would make it more likely for him to join the commission, all things being rational, because he had essentially cost the commission a half million dollars.  This is the opposite of the usual quid pro quo.

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In my recent entry about Rep. Charles Rangel of New York, I said nothing about the fact that the university center he was seeking funds for has his name on it. An excellent entry by John Fund placed up on Huffington Post today focuses on this part of the story.

Yes, why should anything, especially anything built with public funds, be given the name of a serving (or even recently serving) government official? You can't have a stamp, but you can have an airport or street or university center -- or several of each.

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The drug war is not really about drugs, it's about addiction. And dependency is what powers addiction.

As it turns out, dependency is also what powers the drug war, at least in Texas. Local government agencies, and often local governments themselves, are dependent on the money that comes from asset forfeitures related to the drug trade. We're talking hundreds of millions of dollars.

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You know you're in trouble when a grand jury foreman says about you, "They need an independent organization to be an oversight ..., not just the grand jury doing it once every few years."

Of course, the "they" here are local government agencies:  five community college districts in San Diego County, whose boards of trustees are elected.

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In ethics codes, campaign contributions are sacrosanct. Nearly every ethics code excepts them from the definition of "gift," "personal benefit," "anything of value," or whatever they call money and goods given to government officials and employees. Limiting campaign contributions is a matter for campaign finance laws, because there is no conflict of interest involved.

Or is there? It is a conflict of interest to accept (and, not often enough, to give) money when there is an understanding that a government official will do something in return (the old quid pro quo). It is often considered a conflict of interest for a government official to accept anything from an individual or entity doing business with the city, and sometimes even to accept gifts at all over a certain minimal dollar figure.

It is hardly a secret that the campaign contribution is the form of money most often given with an understanding that an elected official will do something in return. It is also the most common form of money given to elected officials by those doing business with the city.

Yes, an ethics code is not the place to limit campaign contributions. But wouldn't it be the appropriate place to treat a campaign contribution as a conflict of interest?

Westminster, Colorado (pop. 110,000) has done just that.

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I recently reported that the Oklahoma Ethics Commission was considering suing the legislature for more funds, on the ground that the state constitution requires adequate funding for the EC, and the legislature had, among other limits, permitted it to have only one investigator.

The latest news is that the chair of the House Budget and Appropriations Committee came before the Ethics Commission and essentially threatened them with a serious downside to the suit: "It is a great risk that this commission will be undertaking because if you file suit, if the court takes it up and then you do not prevail, what is the likelihood of your funding increases subsequent to the court's decision?"

And if the Ethics Commission accepts its funding as it always has (it sued the legislature back in 1992, but did not pursue the funding part of the suit), what is the likelihood that they would ever get adequate funding?

One goal of campaign finance reform is to end the appearance and reality of corruption that comes with large campaign contributions. This appearance is attached especially to large contributions from those doing business with the city or trying to change its laws -- contractors, lobbyists, and unions. This appearance is most serious when the position has fiduciary obligations and is supposed to be independent rather than representative, such as the New York City Comptroller.

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One of the interesting things about the attorney-client privilege in a government setting is that the privilege -- which is, of course, the client's, not the lawyer's -- is held by the office, not by the individual holding the office at the time of the communication. This is a major reason why the attorney-client privilege is different in a government context:  whenever a government official tells something to a government attorney, the official knows that his or her successor might waive the privilege and disclose the communication or direct the lawyer to do so. In other words, in the government context there is no assured privilege.

In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.

In 2001, President George W. Bush changed this in Executive Order 13,233. Now the former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.

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[This blog entry has been substantially changed based on a response from the Phoenix City Manager, who provided information about the reasons for the City Attorney's position and the relationship of the City Attorney with the mayor.]

Phoenix's City Attorney determined, according to an article in the Arizona Republic this week, that city employees are not permitted to sign a petition seeking recall of the mayor. On its face, this looks like a political act favoring the mayor, which is how I first presented it. But it was, according to the City Manager, an honest interpretation of the Charter.

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