In the news

The actual and perceived independence of an ethics commission is one of the most important aspects of a government ethics program.

The U.S. House of Representatives finally decided to be overseen by an independent Office of Congressional Ethics. Hallelujah!

And so who did the House appoint? The three Democrats are former Reps. David Skaggs (D-Colo.), Yvonne Brathwaite Burke (D-Calif.) and Karen English (D-Ariz.). The three Republicans are former Rep. Peter Goss (R-Fla.), former House Chief Administrative Officer Jay Eagan, and the only member without close ties to Congress, Allison Hayward, former chief of staff for Federal Election Commissioner Brad Smith. The alternates are former Reps. Abner Mikva (D-Ill.) and Bill Frenzel (R-Minn.).

So much for a perception of independence. So much for sending a responsible message to local governments concerning whom to appoint to their ethics commissions.

Pick your former associates, Congress is suggesting, people you feel will be loyal to you and to the way things are done in your city. Make sure they have no subpoena power and cannot even recommend sanctions, just in case they actually want to act responsibly.

Thanks, Congress. That 9% good-or-excellent rating of yours deserves to go down another percent or two.

The New York State Commission on Public Integrity released a report yesterday on the allegations relating to the Spitzer Administration's attempts to gather and make public the travel abuses of the Senate Majority Leader, in order to tarnish his reputation. See the New York Times article.

There are two issues I would like to focus on, both of which involve government employees (a police superintendent and a lawyer) doing private work for public officials.

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According to a recent article in the San Diego Union-Tribune, the chair of one of the city's economic development commissions made an unusual deal with, and a half-million-dollar instant profit from (the purchase and sale transactions were filed at the same time), the commission three years before he became a member.

Assuming this article is accurately describing the situation, this creates an unusual conflict of interest.  Clearly, the commission chair was not using his position to give himself a financial benefit, because he obtained the financial benefit three years before he joined the commission.  He also did nothing that would make it more likely for him to join the commission, all things being rational, because he had essentially cost the commission a half million dollars.  This is the opposite of the usual quid pro quo.

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In my recent entry about Rep. Charles Rangel of New York, I said nothing about the fact that the university center he was seeking funds for has his name on it. An excellent entry by John Fund placed up on Huffington Post today focuses on this part of the story.

Yes, why should anything, especially anything built with public funds, be given the name of a serving (or even recently serving) government official? You can't have a stamp, but you can have an airport or street or university center -- or several of each.

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The drug war is not really about drugs, it's about addiction. And dependency is what powers addiction.

As it turns out, dependency is also what powers the drug war, at least in Texas. Local government agencies, and often local governments themselves, are dependent on the money that comes from asset forfeitures related to the drug trade. We're talking hundreds of millions of dollars.

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You know you're in trouble when a grand jury foreman says about you, "They need an independent organization to be an oversight ..., not just the grand jury doing it once every few years."

Of course, the "they" here are local government agencies:  five community college districts in San Diego County, whose boards of trustees are elected.

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Talk about the appearance of impropriety is, as Congressman Charles B. Rangel of New York is quoted in a recent New York Times article as saying, “annoying.” Why should there be anything more than a decision of his peerless peers on the House Ethics Committee, guilty or not guilty? Appearances of propriety are not for someone of Rep. Rangel’s ilk.

A determination in his favor by the House Ethics Committee would, Rangel feels, require a public apology from the Washington Post for writing unfavorably about his use of congressional stationery to solicit contributions for the Charles B. Rangel Center for Public Service at the City College of New York. The Post also reported that Rep. Rangel has approached, and obtained large contributions to the Center, from individuals and businesses with interests before the House Ways and Means Committee, which he chairs. He also obtained two grants, totalling $690,500, from HUD to renovate a building in his district for the Center. It's hard to find more appearances of impropriety in a single matter than in this one.

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I recently reported that the Oklahoma Ethics Commission was considering suing the legislature for more funds, on the ground that the state constitution requires adequate funding for the EC, and the legislature had, among other limits, permitted it to have only one investigator.

The latest news is that the chair of the House Budget and Appropriations Committee came before the Ethics Commission and essentially threatened them with a serious downside to the suit: "It is a great risk that this commission will be undertaking because if you file suit, if the court takes it up and then you do not prevail, what is the likelihood of your funding increases subsequent to the court's decision?"

And if the Ethics Commission accepts its funding as it always has (it sued the legislature back in 1992, but did not pursue the funding part of the suit), what is the likelihood that they would ever get adequate funding?

One goal of campaign finance reform is to end the appearance and reality of corruption that comes with large campaign contributions. This appearance is attached especially to large contributions from those doing business with the city or trying to change its laws -- contractors, lobbyists, and unions. This appearance is most serious when the position has fiduciary obligations and is supposed to be independent rather than representative, such as the New York City Comptroller.

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One of the interesting things about the attorney-client privilege in a government setting is that the privilege -- which is, of course, the client's, not the lawyer's -- is held by the office, not by the individual holding the office at the time of the communication. This is a major reason why the attorney-client privilege is different in a government context:  whenever a government official tells something to a government attorney, the official knows that his or her successor might waive the privilege and disclose the communication or direct the lawyer to do so. In other words, in the government context there is no assured privilege.

In 1989, President George H. W. Bush recognized this in Executive Order 12667. This Order directed that a former president could ask that information not be disclosed, but that the incumbent Attorney General and Counsel to the President make the final decision.

In 2001, President George W. Bush changed this in Executive Order 13,233. Now the former president can make the final decision. In other words, now the privilege is officially held by the individual, not the office.

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