Revolving Door Provisions in Local Government Ethics Codes

I've been meaning for a long time to take a long second look at the City Ethics Model Code provision on the revolving door that many officials walk through between government and firms that do business with government. It's a complex matter, and local governments as well as states with jurisdiction over local government ethics deal with it in a variety of ways. Revolving door, or post-employment, provisions vary from a single sentence to almost 1,500 words in the District of Columbia.

The revolving door is also often dealt with in lobbying provisions and confidential information provisions, and ordinary conflict of interest provisions may or not cover the situation where employment is offered to or sought by a current government official.

In a great many local governments, there is no provision dealing with the revolving door and, in fact, many local ethics commissions have no jurisdiction over former officials (a big mistake).

Why the Revolving Door Is So Important
Why is the revolving door such an important government ethics issue? One, because it is so common. And two, because this common activity, more than any other, sends the message to citizens that people run for office and go into government service in order to win the corporate lottery, and to use their time in office to do what they need to do to appeal to contractors, developers, and other companies that do business with local governments.

Most people rightly believe that appealing to such companies is not in the public interest, but in the officials' personal interest, even if it doesn't pay off (other than in the form of campaign contributions) until they are no longer in public service.

The problem with the revolving door is usually put in terms of undue influence or unfair advantage given to the companies that hire, or might hire, government officials, either as full-time employees or as professionals (lawyers, lobbyists, engineers, etc.). This influence and advantage might exist at any time during an official's time in office, but the situation can be dealt with only after the fact, because there is usually no actual transaction or even promise, just a tacit understanding that there will be future rewards for help given by officials.

Of course, if there is proof of a job offer in return for the official's action (difficult to prove without bugging someone), it is no longer an ethics matter, but rather the crime of bribery.

There is also, of course, the pay-to-play side of the equation, where officials demand future employment in return for favors granted.

There is a second revolving door problem, where nothing may have occurred during the official's time in office. That is the use of an official's contacts, influence, and knowledge to unfairly help certain individuals and entities. This is commonly done through lobbying, but it can take many forms, including, for example, providing advantage in getting competitively bid contracts and more quickly getting approval of land use requests. One call to someone you mentored, who is now in your position, can do wonders.

Revolving Door Provisions
A revolving door provision should consist of a few sections. There are two principal sections, one involving representation, or acting on behalf of an individual or company, the other involving employment. The employment section is divided between employment by a contractor and employment by those who have benefited from decisions made by an official.

There are also two levels of official involvement:  personal involvement in the particular matter, and involvement through having had official responsibility over the particular matter, that is, authority over those personally involved in it.

Higher-level officials should be treated differently from lower-level officials. A former board member need be banned only from appearing before his or her board, and a former agency employee need be banned only from appearing before his or her agency. But a former mayor, city manager, or council member, and major staff, should be considered to have worked for every agency and board, because their jurisdiction, connections, knowledge, and power were so broad that their influence can be felt throughout the government. Thus, they should be banned from representation of or employment by those doing business with the local government.

There is also the issue of doing business with one's government. San Antonio and Dallas have a provision that prohibits former officials from selling anything to their government or entering into a no-bid contract with their government for one year after termination (it's six months in Nashville). Seattle prohibits bidding on any contract an official was involved with; this prohibition, however, lasts only one year.

Revolving Door Provisions - Time Period
One of the toughest issues in drafting a revolving door provision is setting the time period during which officials cannot do certain work, or cannot work for certain individuals and entities. It is common for the period to be one or two years across the board, but no one period is appropriate for all revolving door issues.

One year is too short a time period to accomplish the goals of a revolving door provision, but the longer the bar, the more difficult it might be to hire qualified officials or find qualified candidates for office. This is the trade-off every local government must make in setting the time period. I have used two years for the ordinary representation and employment bans, the period used, for example, in Baltimore, Jacksonville, and in at least four Texas cities, San Antonio, San Jose, El Paso, and Austin.

I think that one year is essentially cosmetic:  it's a ban, but it's a short enough time that it's worth waiting out. Two years, I think, is a reasonable compromise between effectiveness and the burden on government officials.

When an official has been involved personally and substantially in a particular matter, the revolving door ban should be unlimited in time. Any involvement at any time would create a clear conflict between the official's public and private work, and serious opportunities for abuse.

Revolving Door Provisions - Exceptions
The City Ethics Model Code includes five exceptions to the revolving door provision:  for those willing to do volunteer work for the local government, those acting on behalf of other governments, those testifying without compensation, those providing technical information at the government's request, and those who, when in office, performed only ministerial acts, that is, had no effect on policy and were not involved substantially in transactions.

Some revolving door provisions extend the exception for government agencies to work for an official's own government as a paid consultant. Even though this would not create a conflict, this sort of work allows sweetheart deals between the local government and former officials, who normally have the edge in competing with vendors lacking their municipal contacts. In effect, they themselves are the company they are providing an unfair advantage to. For this reason, a former official should consult to the city only on a volunteer basis for the first one or two years after public service.

Revolving Door Provisions - Waivers
Because the appearance of impropriety surrounding the revolving door is so strong, an official who is not certain whether this provision applies to work they are seeking or are requested to do, and who does not want to turn it down, should ask the ethics commission for an advisory opinion or a waiver.

Because revolving door provisions can create a serious burden for former officials, this is an area where waivers are more common than elsewhere. What is important in granting a waiver is that it be done in public -- no executive sessions, and a clear decision setting out facts and conclusions -- and that it show clearly that there would be no undue influence and that nothing the official did while in office could be seen in a different light after knowing that he or she was offered employment shortly after the termination of public service. In other words, there should be no appearance of impropriety.

Other Provisions
Many local governments expressly include former officials and employees in their confidential information provisions. For former officials, especially, it is important that such provisions apply to confidential information that benefits not only the official, but anyone, including companies that can greatly benefit from it. Revolving door provisions should, at least in a comment, make reference to the confidential information provision, so that former officials can find their prohibitions all in one place.

Massachusetts includes former local officials in its gift ban when gifts are "because of official action." If the matter was only within an official's area of responsibility, the gift ban lasts only one year.
 
There is another side of the revolving door, the revolving door from the business world into government. It may be dealt with in language like the following, which can be added to the conflict of interest provision:

It is a violation of this code for an official or employee to, within one year of entering city employment or service, award a contract or participate in a matter benefiting a person or entity that formerly employed him or her.

This is actually a basic conflict of interest, but since the official is no longer employed, it will not necessarily be considered a conflict unless it is expressly stated to be one.

Here are links to the relevant City Ethics Model Code provisions:
Revolving Door
Confidential Information
Conflict of Interest

Robert Wechsler
Director of Research-Retired, City Ethics

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