making local government more ethical
When a lawyer decides to represent a private client, she does not give up her right to vote or petition governments on her own behalf. But what about when a lawyer decides to represent a public client, especially as a lobbyist? Does such a lawyer give up her right to vote on issues relating to the city government (assuming she sits on another government's board) or petition a government on behalf of her own beliefs?

These questions arise from a case in Cincinnati, where a city lobbyist also sat on the county elections board. According to an article this week on cincinnati.com, the city government strongly opposes moving an early-voting site out of the city's downtown, but the lobbyist supports the move. The mayor asked the lobbyist to withdraw by abstaining from the elections board vote. Instead, the lobbyist withdrew from his lobbying contract, which had paid him nearly $9,000 a month.

In a New York Times column today, Michael Powell has unearthed an ugly-looking government ethics situation in New Jersey involving apparent misuse of government ethics authority to win a vote.

The fact situation is fairly typical. What is not typical is the way it has been handled. A gas company is seeking permission to put a pipeline through the Jersey Pine Barrens, a huge nature reserve that is overseen by the Pinelands Commission, an independent agency whose members are selected by the governor, by various local officials, and by the U.S. Department of the Interior. The members include environmental activists as well as real estate professionals.

The current governor's administration has arranged a deal by which the gas company will pay $8 million to the commission, and the commission's staff support the deal. But the four preceding governors have written a letter opposing the pipeline, and it looks like the commission vote, scheduled for tomorrow, will be close.

One of the commission members is, among other things, the president of the board of the nonprofit Eastern Environmental Law Center, which called for an additional public meeting on the pipeline. According to the article, on December 6 a deputy attorney general called the commission member to tell him that he had a conflict of interest based on the center's call for an additional meeting. The commission member said that he did not believe this constituted a conflict. The deputy AG said that the commission member could appeal to the commission's ethics officer. Every state agency in NJ has an ethics officer, as part of the state ethics program, which also has a state EC.

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.

The Boss of the Ethics Director's Bosses
According to an article this week in the Free Times, an FOI lawsuit was filed against South Carolina's ethics commission, because its director had said that a letter informing the governor of an ethics violation had not been sent and had been destroyed, when in fact it was sent and did exist.

Not only does the governor appoint all EC members (making her the boss of those for whom the ethics director works) but, according to the article, the director consulted with the governor's private attorney before telling his staff attorney that her opinion (apparently the one in the letter) was uninformed. This relationship with the governor, plus the EC's lack of transparency, undermine the public's trust in the ethics program.

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.

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