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.

Most people believe that lobbyists are guns hired to influence government officials, and most lobbying laws reflect this by applying only to those who lobby, not to the clients for whom they lobby. Unlike most laws, lobbying laws focus on agents rather than their principals.

This problem extend beyond these jurisdictions. When business executives who work in cities and counties that require only agents to register as lobbyists seek work in jurisdictions that require principals to register as well, they feel like they've been unfairly fooled when they are told they've violated the lobbying law.

According to an article in the Miami Herald this week, this is what happened when an Atlanta-based developer was fined for not registering as a lobbyist when he communicated with officials with respect to a bid on convention center work in Miami-Dade County.

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).

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.

When city and county contractors and their lobbyists don't follow the rules, it's difficult to catch them, because few cities have an oversight office that investigates on its own initiative. Without such a program, communities depend on federal and state criminal enforcers who focus on bribery and kickbacks.

It is the FBI and a federal grand jury that did the job in Dallas County which, unlike the city of Dallas, has no ethics program, just an aspirational code. In fact, it has two aspirational codes, only one of which is linked to on the county website; the one linked to is the National Association of Counties Code of Ethics (attached; see below); there is also a short ethics code in the county Code of Ordinances (Sec. 94-51). But there is no local ethics program.

According to a press release from the U.S. Attorney for the Northern District of Texas, a federal grand jury has returned a 109-page indictment charging a long-time Dallas County commissioner (Price), his chief of staff, a corporate lobbyist, (Nealy) and a corporate consultant (Campbell) with a conspiracy that involved nearly $1 million going to the commissioner (in the form of money, land, and cars (one of the four cars, a New 2005 BMW 645Ci, cost $100,000)), while the commissioner supported the bids of the lobbyist's clients and provided them with confidential information that gave them a "strategic advantage" over other bidders.

When a lobbying code requires that lobbyists report "specific lobbying issues" or "the subjects on which they have lobbied," what exactly is required? The best approach is to include more specific language in the disclosure section, such as "information sufficient for an ordinary member of the public to identify the law or resolution, contract, grant, regulation, real property or project, rule, proceeding, board or commission determination, or other matter."

Another approach is to include this information in comments to the lobbying code, or in a manual. This is what Congress chose to do in its Lobbying Disclosure Act (LDA) Guidance publication (attached; see below). Here is what this publication says on the topic, and the example it provides:
randomness