making local government more ethical
According to a recent Reader Supported News article, ethics allegations have been made in Montpelier regarding two high-level officials. Both allegations are worthy of a closer look.

According to the article, the mayor of Montpelier, the state capital, is a lawyer with a firm that represents two major national banks. The city's director of planning and development is the executive director of Global Community Initiatives (GCI), a nonprofit dedicated to sustainable development. Among GCI's goals is the establishment of a Public Bank of Vermont. Apparently, the idea of a public bank is opposed by commercial banks.

According to an article in the Capital Gazette, a former Anne Arundel County (MD) county executive, who was convicted early this year of a misdemeanor for misconduct in office, wants to run for office again, despite the judge ordering, as part of the criminal penalty, that he not be permitted to run for office for five years.

The former official's arguments in an appeal to the conviction, solely regarding the ban on his running for office, are (1) that the language in the criminal provision was overly vague, preventing him from knowing that he was committing a crime, and (2) that the court lacked the authority to ban him from running for public office.

A Baltimore Sun commentary this week by iSolon.org's president, J. H. Snider, notes that many elected officials, including the county executive's predecessor, have their security detail do personal and political work for them, and are never prosecuted. He also explains that, due to a debilitating back operation, the county executive was forced to depend on those around him in unusual ways, such as changing his urinary catheter bag.

But the problems go well beyond these, and are much more general in nature.

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.