making local government more ethical
I keep thinking about the recent line of U.S. Supreme Court campaign finance cases that limit corruption to "quid pro quo" situations. A few months ago, I wrote a blog post explaining that the Court's picture of campaign finance as about political beliefs is not how things work at the local level, where politics is more about power and spoils than about beliefs. But the "quid pro quo" view of corruption is problematic in other ways.

One problem is that this view involves only one kind of corruption:  personal corruption. It is relevant only to situations where one individual wants a candidate or official to do something very specific in return for a campaign contribution. This is a problem, but it is not the principal problem in campaign finance.

An excellent editorial yesterday by Dan Barton, editor of the Kingston (NY) Times, raises a few important issues relating to local government ethics proceedings.

According to Barton, Kingston's new ethics board dismissed a complaint from a city alderman that the mayor had violated the ethics code by hiring as an attorney for the city's local development corporation a lawyer with whom the mayor practiced as "of counsel."

The Speech or Debate Clause of the U.S. Constitution protects activities within the "legislative sphere" from being heard outside the legislature, and prevents the introduction of evidence of legislative activity in any such hearing. A recent brief from the U.S. House Ways and Means Committee in S.E.C. v. Ways and Means Committee argues (on pp. 30, 34-37) that communications between industry lobbyists and the staff director of the committee's subcommittee on health are privileged and may not be subpoenaed by the SEC in an investigation of alleged insider trading-related leaks.

A recent action by the Securities and Exchange Commission (SEC) against the city of Harvey, IL, a poor city of 30,000 just south of Chicago, deals with a different sort of fiduciary duty than the usual government ethics case. In a complaint dated June 24, 2014 (attached; see below), the SEC alleges that the city's comptroller acted as financial adviser in three bond issues for a hotel development, diverted some of the funds to himself, and also diverted funds to the city's general fund. The comptroller is acting as financial adviser for a 2014 bond offering, which the SEC is trying to prevent through a court restraining order.

The action is based on the city's fiduciary duty to disclose to investors how bond proceeds will be used, as well as the risks associated with investing in the city's bonds (but the term "fiduciary duty" is not actually used in the complaint). This is part of the SEC's promised crackdown on disclosure failures related to municipal bonds. Alternatively, the complaint alleges fraud and the making of false and misleading statements.

The Washington state Legislative Ethics Board has been discussing how many meals a state legislator should be able to accept from lobbyists and lobbyist-employers under the "infrequent" meals exception in the state ethics code. The exception allows legislators to accept food and beverage when their attendance is "related to the performance of official duties" on "infrequent occasions." The board has apparently never defined "infrequent."

It's About Perceptions
This discussion has some resemblance to the discussion of how many angels can fit on the end of a pin. Once you believe that one angel can fit on a pin, where do you stop? This is why many in the government ethics world (including me) believe that officials should not be accepting any meals from those seeking special benefits from their government. It isn't because any particular official can be "bought" by the price of a meal. It's about perceptions.

After all, the basic Washington state gift rule prohibits any gift "if it could be reasonably expected that [it] would influence the vote, action, or judgment of the officer or employee, or be considered as part of a reward for action or inaction." I don't think it is possible for an official to convince the public that a restricted source wants to meet with her for any reason other than to influence or reward her vote, action, or judgment.

An individual who was asking me government ethics questions recently became angry when I said that codes of conduct that go beyond conflicts of interest are outside of my field. He said that those who engage in bad conduct will probably also engage in bad ethics. He referred to my exclusive focus on conflicts of interest as "compartmentalization."

This reminded me how important it is to make it clear why government ethics programs deal exclusively with conflicts of interests and misuse of government office (and sometimes lobbying, campaign finance, and transparency). The reason I emphasized to the individual was an operative difference, that is, a difference in how the kinds of conduct are dealt with. A conflicts of interest program is based primarily on training, advice, and disclosure. These are much less relevant to officials who make misrepresentations, take drugs, engage in sexual harassment, steal money, have affairs, let their anger get the best of them, etc. No one is going to disclose that they have stolen money, no one can be trained not to have affairs, and no one is going to seek advice about whether to misrepresent facts. This is an important reason why these different kinds of misconduct must be dealt with differently, outside a government ethics program.