making local government more ethical
Sometimes, conflict of interest matters come disguised as election law matters. Most of the time, due to secrecy, laziness, or an inability to draw lines between the dots, no one recognizes the conflict of interest matter. But sometimes, someone gives the game away, and it becomes clear how inextricable the two areas can be.

According to an article in today's New York Times, the game in Nassau County, NY (pop. 1.3 million) was putting up a third-party candidate for county executive in order to take votes away from a major party candidate. One conflict matter was the arrest of a man who had not paid a $250 fine. Why was this a conflict matter? Because a tiny percentage of those who do not pay fines are ever arrested. This arrest was handled by three police officers, and occurred on a bus. It was clearly a case of preferential mistreatment.

A "resign to run" law is an unusual sort of conflicts of interest law. It requires that before an elected official runs for a different office, she resign from her current office. Philadelphia's "resign to run" law is one of the most onerous ones. According to the Committee of Seventy, a Philadelphia good government organization, other cities that have such laws, such as Phoenix and Dallas, also have term limits for council members. Philadelphia does not.

Philadelphia's "resign to run" law was part of charter revision in 1951, which also included the creation of a civil service commission. That is, it was part of an attempt to bring patronage under control.

Things have changed. The Committee of Seventy says, "It’s hard to gauge whether elected officials who are not forced to resign would be more or less likely to influence and intimidate employees as they would if they were running for reelection (as they can now). When the Philadelphia Board of Ethics discussed 'Resign to Run' at a recent meeting, its Executive Director said it didn’t seem that it would."

The Committee of Seventy supported removing the "resign to run" law in 2007. The same ballot question has successfully gone out of committee and will soon go before the city council.

It was pointed out to me by Justin Levitt, a professor at Loyola Law School Los Angeles, that back in 2000 John Copeland Nagle, a professor at Notre Dame Law School, wrote a law review article suggesting what I call the Westminster Approach to campaign contributions from those seeking benefits from the recipient official's government. The article, which focuses on Congress, is entitled "The Recusal Alternative to Campaign Finance Legislation" (37 Harv. J. on Legis. 69 (2000)).

The Westminster Approach, named after a 1996 ethics law in Westminster, CO, requires an official who has received a gift, including a campaign contribution, above a certain dollar amount to withdraw from participation in a matter involving the contributor. This means that there is no contribution limit, but if a contributor goes beyond the gift limit, the recipient official is not in a position to help the contributor. Therefore, there is nothing to be gained (1) by making large contributions in the hope that they will benefit the contributor, or (2) by requiring the payment of large contributions in order to play.

The long-running Carrigan case (Carrigan I, that is) may have finally come to an end. And it's a very good end. After the U.S. Supreme Court threw out Carrigan's absurd argument that a council member has a First Amendment free speech right to vote on legislative matters where he is conflicted, the Nevada Supreme Court concluded that, if a council member chooses not to seek ethics advice and votes on a matter involving someone with whom he has a special relationship, he cannot say that the conflict provision was unconstitutionally vague with respect to due process.

A recent post on Philadelphia's Parents United for Public Education blog raises an issue that pulls together FOI and confidential information issues. Entitled "Is 'right to know' the new 'pay to play'?", the post is about Parents United's attempt to make public a report that contains a list of Philadelphia schools recommended for closure and the criteria used for developing the list. The failure of this attempt would mean special access to confidential information for those who partially funded the preparation of the report.

The criteria and list were put together by a contractor, the Boston Consulting Group (BCG), and the project was partially paid for by the William Penn Foundation. In turn, for this project, the foundation solicited donations from, among others, real estate developers and those promoting charter expansion, that is, from individuals and entities that stood to benefit from information about school closings as well as from the closings of particular schools.

Parents United sought to get a copy of BCG's report, but were told by the school board that the report was protected from disclosure as an "internal predecisional document." Parents United won the case before the Pennsylvania Office of Public Records, on the grounds that the document had been disclosed to the William Penn Foundation and the foundation was not "internal." The school board has filed suit in court to overturn the Office of Public Records decision.

In my estimation, Seattle voters made a big mistake last week. They voted for two related changes to their government. One was a public campaign financing program for citywide council elections. The other was a change from citywide council elections to district council elections, which would leave only two citywide positions.

Public financing was rejected 51.6% vs. 48.4%. Council districts were accepted 65.6% vs. 34.4%. Both votes will lead to more institutional corruption in Seattle. By this, I mean the legal influence of those seeking benefits from the officials to whom they contribute and the facilitation of legal pay to play.

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