Wednesday, March 16, 2011

conflict of interest

Dear Editor,

"Mothers may still want their favorite sons to grow up to be President, but . . . they do not want them to become politicians in the process" John F. Kennedy

     Rebecca D. Costa is author of The Watchman's Rattle. In Sunday, April 17, 2011 in the San Francisco Chronicle, she wrote a column titled, “Has America become a libertarian's dream?”
    The column notes how the congress in Washington is performing. Is it any more gridlocked today than it has been in the past? There has been an undeniable decline in the percentage of congressional bills that come to fruition.
     According to Paul Singer of Roll Call, "Of the 449 bills that became law in the 110th Congress, 144 of them - 32 percent - did nothing more than rename a federal building." Rename a federal building? Libertarians could do no better.
     Singer says the number of "ceremonial bills" is on a fast rise. During the 104th Congress, less than 10 percent of new bills were associated with renaming a building. Noting that the figure is 32 percent today, Singer concludes, "As the number of bills passed by Congress has declined, members appear to have taken to introducing bills as a way of establishing a public position on an issue or making a symbolic gesture."
     If a decline in government effectiveness can produce the same results, the Libertarian Party need no longer waste its time or money hosting conventions and funding unsuccessful presidential campaigns. Government gridlock has done more to forward Libertarian objectives than anything else the party has tried.
Roll Call Reports:
13,675 Bills introduced by the 111th Congress
2.8 Percentage of those bills enacted into law
14,042 Bills introduced by the previous 110th Congress
3.3 Percentage of those bills enacted into law
13,074 Bills introduced by the 109th Congress
3.5 Percentage of those bills enacted into law.
Source: TheCapitol.Net

pol·i·ti·cian  (pl-tshn) n.
a. One who is actively involved in politics, especially party politics.
b. One who holds or seeks a political office.
2. One who seeks personal or partisan gain, often by scheming and maneuvering.
3. One who is skilled or experienced in the science or administration of government.

gov·ern·ment  (gvrn-mnt) n.
1. The act or process of governing, especially the control and administration of public policy in a political unit.
2. The office, function, or authority of a governing individual or body.
3. Exercise of authority in a political unit; rule.
4. The agency or apparatus through which a governing individual or body functions and exercises authority.
5. A governing body or organization, as:
a. The ruling political party or coalition of political parties in a parliamentary system.
b. The cabinet in a parliamentary system.
c. The persons who make up a governing body.
6. A system or policy by which a political unit is governed.
7. Administration or management of an organization, business, or institution.
8. Political science.
9. Grammar The influence of a word over the morphological inflection of another word in a phrase or sentence.

So, how can we have more governing and less politics? An idea is outlined below.

A letter written to Robert Wechsler…

Robert Wechsler
Director of Research, City Ethics
Dear Mr. Wechsler,

In reading Conflict of Interest  Conflict of Interest Provisions Model Code, I have tried to compose thoughts on applying conflict of interest and recusal to elected officials. Boards of directors do this all the time. Public officials should also.

The American politician now seems to care more for re-election than governing. I’m trying to end that. My problem is, I am not a constitutional scholar or writer. I’ll try to outline my thoughts.

1.     An amendment to the US Constitution would be made.
2.     All federally elected or appointed officials would be subject to the amendment.
3.     An independent office for enforcement of this amendment would be created. We’ll call it the Dept. of Conflict of Interest. The C.O.I.
4.     All individuals or organizations donating, in one calendar year, more than $25,000 to any one candidate, officer or appointee must register with the C.O.I. This amount could grow with some measure.
5.     The C.O.I. would investigate each applicant to determine the applicants affiliation. If applicant was a labor union in the timber industry, then all their donations of $25,000 and more to one candidate, officer or appointee, would cause the candidate, officer or appointee to recuse1 themselves from voting on or making decisions having an impact on issues the C.O.I. felt applicable; labor, unions, timber, etc.
6.     Individuals who are partners or shareholders or investors in a $25,000 and more to one candidate, officer or appointee, would also be studied by the C.O.I.
7.     So, every donating individual or group would have affiliation baggage attached before donations could be made.
8.     Every candidate, officer or appointee would be informed of this affiliation baggage before accepting donations.
9.     The C.O.I. would make available every donor providing donations of $25,000 and more to one candidate, officer or appointee and to whom donations were made.
10.                        So, the candidate, officer or appointee could still perform their assigned tasks, but would, on occasion, recuse themselves because of conflict of interest.
11.                        A candidate for any office would be held to the same law.

There may be other things to add to remove loop holes, but all this “extra government” would finally give us government.


George Vierra
St. Helena, CA

1 recuse To disqualify or seek to disqualify from participation in a decision on grounds such as prejudice or personal involvement.
Robert Wechsler’s response…

Dear Mr. Vierra:

I focus on local government ethics, and there happens to be a city that uses roughly your plan:  Westminster, Colorado.

I discussed its plan in a blog post back in 2008.

Yours sincerely,

Robert Wechsler
City Ethics, Inc.

If Only a Large Campaign Contribution Could Be Considered a Conflict of Interest -- The Westminster Approach

Thu, 2008-07-17 20:36
In ethics codes, campaign contributions are sacrosanct. Nearly every ethics code excepts them from the definition of "gift," "personal benefit," "anything of value," or whatever they call money and goods given to government officials and employees. Limiting campaign contributions is a matter for campaign finance laws, because there is no conflict of interest involved.

Or is there? It is a conflict of interest to accept (and, not often enough, to give) money when there is an understanding that a government official will do something in return (the old quid pro quo). It is often considered a conflict of interest for a government official to accept anything from an individual or entity doing business with the city, and sometimes even to accept gifts at all over a certain minimal dollar figure.

It is hardly a secret that the campaign contribution is the form of money most often given with an understanding that an elected official will do something in return. It is also the most common form of money given to elected officials by those doing business with the city.

Yes, an ethics code is not the place to limit campaign contributions. But wouldn't it be the appropriate place to treat a campaign contribution as a conflict of interest?

Westminster, Colorado (pop. 110,000) has done just that.

Click here to read the rest of this blog entry. 

Section 5.12.1 of its charter reads,
(a) The acceptance or receipt by any Councilor or member of that Councilor’s immediate family, or an organization formed to support the candidacy of that Councilor, of anything of value in excess of one-hundred dollars ($100) from any person, organization, or agent of such person or organization, shall create a conflict of interest with regard to that Councilor’s vote on any issue or matter coming before the Council involving a benefit to the contributing person, organization, or agent, unless such interests are merely incidental to an issue or question involving the common public good.

(b) For purposes of this Section, the following terms shall be defined as: (i)  "Thing of value" means money, employment, goods, services, or objects with any intrinsic value, including but not limited to, campaign contributions, loans, offsets to expenditures, contributions in kind, and independent expenditures by any person or organization on behalf of the candidacy of a Councilor, provided that such thing of value was received during the Councilor’s current term of office or anytime within six (6) months prior to the commencement of the Councilor’s current term of office.

Westminster goes right to the heart of the matter -- not the contribution itself, which is central to citizens' expressions of their political preferences -- but the effect of the other sort of contribution, the large contribution intended, possibly, not only to express a political preference (or not even, since often large contributions are given to both or all candidates by the same individual or entity), but also to influence the candidate.

If the contribution was not intended to influence the candidate, then the contributor won't mind that the candidate cannot participate or vote on any matter dealing with the contributor's interests. In addition, the candidate will not be placed in the position of appearing to favor someone who gave him or her a sizeable contribution or -- and this is certainly possible if the candidate is truly independent -- having to vote against a strong supporter. It's a win-win situation for everyone, so long as there was no intent to influence.

What makes this approach so effective is that it is very hard to prove an intent or understanding to influence, but it is very easy to prove that a sizeable campaign contribution was received.

The Westminster provision is far from perfect (for example, what about the contribution given the day after the vote?). But the approach is, I think, a good one. For one thing, there is no concern about participation in a program or about constitutionality, as there is with every other restriction on campaign contributions.

The Westminster approach is too good to be true and, alas, this approach does have one serious weakness: what politician is going to support it?

I would love to know of any other local governments that do something similar to this, ideas for making the approach work, and arguments against this approach.

Robert Wechsler
Director of Research, City Ethics
As written above, some may argue the idea above just creates more government. No, it creates government.

George Vierra
St. Helena, CA

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