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.

ALEC has gone local. No, not Alec Baldwin. ALEC is the American Legislative Exchange Council, an organization that for the last few years has been drafting conservative legislation for state legislatures. According to an article in today's New York Times, this year ALEC started a new program called the American City County Exchange, which will draft conservative legislation for local legislatures.

Its first area of focus is right-to-work laws, the term for laws that prohibit labor unions from requiring their members to pay fees. The members still get the value of the union's work, but don't have to pay for it. This leaves the union with less resources to get politically involved. The goal of these laws is changing the balance of political competition.

The issue I want to raise involves local lobbying. When organizations such as ALEC try to get county officials to pass their laws, they do not have to disclose their lobbying, because very few counties have lobbying oversight programs. Thus, according to the article, when an ALEC ordinance came before the Warren County, Kentucky Fiscal Court (effectively, the county commission) last week, it came completely out of the blue, with no disclosure of lobbying or even of the topic of the ordinance.

When it comes to local lobbying oversight, cities are falling like flies. At least in Canada.

According to an article yesterday on the Vancouver, BC Metro News website, the city council voted unanimously to look into establishing a lobbying registry and hiring an independent ombuds, apparently to run the registry and more. This follows the vote to establish a lobbying registry in Hamilton, and the establishment of lobbying registries in Toronto and Ottawa.

I wish the news were as good in the U.S. Here the best news is that the chapter of my book Local Government Ethics Programs on lobbying (along with a Model Lobbying Code) should be done and online by the end of January, if all goes well.

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 principal value of lobbying, according to both lobbyists and government officials, is the expert information lobbyists provide. The view is often stated that, with the resources they have, government officials could not effectively do their job without the expertise they obtain from lobbyists.

The public, however, has no idea how this information is used. When it turns out that a lobbyist effectively wrote a bill, argument, letter, or speech that an official presents as his own work, no matter how useful this service may be, it appears that the official is representing the lobbyist's client rather than the public.

An article in today's New York Times quotes former Oregon attorney general David B. Frohnmayer on the topic, specifically with respect to a letter written by a energy industry lobbyist for a state attorney general to send to the federal Environmental Protection Agency:
“When you use a public office, pretty shamelessly, to vouch for a private party with substantial financial interest without the disclosure of the true authorship, that is a dangerous practice. The puppeteer behind the stage is pulling strings, and [the public] can’t see. I don’t like that. And when it is exposed, it makes [the public] feel used.”
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