making local government more ethical
Former lobbyist, now jailbird, Kevin A. Ring shared some valuable words of wisdom in an op-ed piece in the Washington Post this week.

He says that the gift limit should be zero, because any other limit will be abused (what he doesn't say is that any exception will also be abused). He also notes that "Numerous psychologists and behavioral economists have confirmed the principle of reciprocity: People are hard-wired to repay even small favors or gifts. For officeholders, this benign, evolutionary instinct could come back to hurt them."

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.

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.