making local government more ethical
More from St. Louis County municipalities. According to an article in Sunday's St. Louis Post-Dispatch, several of these municipalities — with the connivance of municipal court judges, local prosecutors, police officers, and lawyers — use the state's point system for traffic tickets to get more money for themselves. The result is a system of ticket fixing that takes institutional corruption to a new level. Most ticket fixing involves police officers doing secret favors for people, for a variety of reasons, often due to connections with high-level officials. A lot of people know about the ticket fixing, but they are not directly involved. Here the system is more open and more people are directly involved. It is a sign of a seriously unhealthy ethics environment in these municipalities.

Here's how it works. You are given a ticket for speeding or running a light, which means both a fine and an increase in your car insurance due to increased "points" (the point system is state law). If you hire a lawyer to represent you, she will get the charge changed to illegal parking, which carries no increase in car insurance, but has a fine twice that of the speeding ticket (and you have to pay the lawyer).

It is important for local government candidates who have serious conflicts of interest to let the community (not just voters in their district) know how they will deal with the conflicts if they are elected. To do this, they usually need to discuss possible situations with an ethics adviser, because it is too difficult to work out a plan on their own. But this rarely happens. Usually, when someone asks the right question, the candidate says she will deal with the issue when it arises, following all the relevant laws.

It is great to see the Chicago Sun-Times asking some good questions and trying to get a conflicted candidate to give more than a promise to follow the law and legal advice. The candidate has some complex conflict situations. An aldermanic candidate in Chicago, Patrick Daley Thompson is a land use attorney, a lobbyist registered with the city, a member of the Metropolitan Water Reclamation District  (MWRD) commission, a nephew of the most recent mayor, Richard M. Daley (in office twelve years, and whose law firm is, among other things, bond counsel for the MWRD), and a cousin of a lobbyist for Morgan Stanley, which appears to have issued the bonds.

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.

There is a front-page article in the New York Times today about the recent increase in lobbying and entertaining state attorneys general (AGs), as well as in campaign contributions from businesses who have a financial interest in decisions that these AGs make, especially with respect to suits they file on behalf of consumers.

Since many state lobbying laws only requiring disclosure of lobbying directed to legislators, much of this lobbying is done in secret and the campaign contributions are permitted. Many contributions are made through partisan AG associations, which were formed in 2000 and 2002, and are funded by big companies that stand to benefit from AG decisions.

In addition, revolving door laws sometimes do not apply to AGs — or former AGs insist they are acting as lawyers and are, therefore, excepted from revolving door laws that apply only to lobbyists — enabling them to immediately do work for companies that are seeking special benefits from the office they just left, as well as their former "clients" in government agencies and the legislature.

The question is, are city and county attorneys being lobbied in the same way by interested parties? These attorneys — most of whom are not elected, but rather are appointed by mayors, councils, and/or managers — not only are responsible for government litigation, but are also highly influential with respect to legislation (which they usually draft) and every other local government matter, upon which they offer their legal and often policy opinions. Especially when there is no strong mayor, the city or county attorney is often the single most influential individual, even if she never gets to vote on legislation.

The logic of a California appellate decision on Monday, in the case of St. Croix v. Superior Court (A140308, July 28, 2014) (attached; see below), doesn't seem right to me. It skips steps. St. Croix is the executive director of the San Francisco Ethics Commission, and this matter involves a public records request for documents relating to the commission’s regulations governing ethics complaints. Here's how the court's logic goes: