Picture this.
You ask the foxes guarding the henhouse to build a new fence. As they gather materials and draw up their plan, it’s safe to say everyone’s watching to see if they leave behind gaps or make the construction too weak.
That’s part of the challenge facing the Vermont Legislature as it develops a State Ethics Commission, a construction project that draws in and opens a Pandora’s Box about how lawmakers should police themselves and how much information, including financial, they should have to disclose.
Some of the foxes don’t think a new fence is needed and resent the whole implication behind it. Most, however, recognize their species is so distrusted, particularly those roaming the halls of Washington, DC or facing indictments in next-door states, that they should do something to restore public confidence.
Others worry any new rules, particularly financial, could go too far and scare off qualified, ethical foxes from even seeking guard duty. That’s the balance lawmakers are trying to find as they try to have the public better informed without prying too far into people’s private lives.
And the whole time, the press is perched, poised with its pens, ready to point out any pimple that pops up as an indication the foxes, like any group asked to police or regulate themselves, are not really serious.
Part of the lack of urgency for some lawmakers is Vermont’s history as a relatively scandal-free state.
Sen. Peg Flory, R-Rutland, summed up the thinking of many lawmakers, recalling a story about a legislator in another state who was stunned that she had only 4,000 constituents when she served in the Vermont House.
“He said, ‘You must know everybody.’ Yup, pretty much. The bad thing is they all know me too,” Flory said.
She added:
“I can’t do something without my constituents knowing that. And that’s why I think (unethical behavior) is not really a problem in Vermont. But some folks have made it an issue. And once they’ve made it an issue, I don’t think any of us have anything to hide…and if it gives people a better sense of confidence in the Legislature, go for it.”
Lawmakers admit the criminal sex assault charges filed against Sen. Norman McAllister, R-Franklin, and his subsequent Senate suspension, heightened scrutiny of how the Legislature polices itself. They acknowledge, however, that the establishment of an ethics commission — statewide or for the Senate itself — would have unlikely made any difference in how the case was handled.
Here’s where things stand:
The Senate Government Operations Committee, after weeks of testimony and rewrites, is poised to pass out a bill, S.184, establishing a State Ethics Commission.
That five-member board would, broadly speaking, regulate the conduct of elected officials including, for example, governor and attorney general, as well as high-level state officials like agency secretaries and commissioners.
Avoiding conflicts-of-interests is one of the main goals, so those covered by the commission would have to disclose their sources of income of $10,000 or more, companies where they own a majority stake and boards, associations and commissions on which they serve.
It would also require the same financial information from candidates running for statewide offices and — in what could be the most controversial part of the bill and be the cause of its death — also those running for the Vermont Legislature.
Here’s where it gets a little confusing, a little entangled, the work of two different committees interlocking.
The State Ethics Commission would not oversee conduct of Vermont lawmakers once elected. Lawmakers claim the state Constitution says they must police themselves. But, they acknowledge, the fox guarding the henhouse can look bad, so they’ve tried to make the requirements for those under the purview of the State Ethics Commission match those lawmakers place on themselves.
“We didn’t want to put anything in for other people that we weren’t willing to follow ourselves,” said Sen. Jeanette White, D-Windham, chair of the Senate Government Operations Committee.
So while White’s committee has slogged on — legislative counsel BetsyAnn Wrask doing late-night rewrites — they’ve been waiting for the Senate Rules Committee to complete creating an internal ethics body to oversee the 30 senators. In particular, Gov Ops has been waiting to see what financial disclosure requirements Senate Rules is willing to place on senators, with hopes of dropping those Rules requirements into the State Ethics Commission bill, like the last piece put into a puzzle.
The discussion at Senate Rules over income disclosure has been sometimes heated, but a consensus appears to be forming on the $10,000 figure.
Sen. Joe Benning, R-Caledonia, serves on both committees, Government Operations and on Rules. He has been conducting shuttle diplomacy between the two, trying to find an income level senators would be willing to disclose that could be plugged into the State Ethics Commission rules.
Sen. John Campbell, the leader of the Senate and chair of Rules, said he sensed more resistance to financial disclosure from more veteran lawmakers. He shares the concern that requiring too much information could chill people from running.
The original commission bill was too much for Vermont, Campbell said, and wouldn’t have passed, which he added would have soured the public. The sausage-making of the legislative process, he said, has produced a reasonable bill and reasonable financial reporting requirements that shouldn’t be viewed as “milquetoast.”
Sen. Richard Mazza, D-Grand Isle, who has served more than three decades and runs a general store in Malletts Bay, sees financial disclosure for lawmakers as unnecessary.
“I don’t think that’s an important subject,” he said. “Everyone knows whether they have a conflict or not when they vote and that should be stated. And we have the ability to do that presently. When you get into financial disclosures I think that’s getting a little too deep in the weeds.”
However, Mazza said later he could accept disclosing income sources of $10,000 or more “as long as it’s simple.”
The financial disclosure could be a “thorny issue” for House members, according to Speaker Shap Smith, who agrees the requirements for state and elected officials, as well as lawmakers, should all be consistent.
Presumably, the House would be expected to adopt financial disclosure rules consistent with those required by the State Ethics Commission and the Senate. Right now, House members have to file forms disclosing only boards and commissions on which they serve and their place of employment, but disclose no financial information about personal or investment income.
“If the Senate bill comes over and it addresses income disclosure, we would revisit it,” Smith said. “But I do think that it will be the source of a lot of disagreement.”
Smith said about income disclosure: “I’ve always had reservations about that. It’s hard enough to get people to run in the first place. I would be open to discussion, but I have some concerns.”
Another potential hot-button proposal is a prohibition on lawmakers working as lobbyists for one year after they step down; the same restriction would apply for all of those covered by the State Ethics Commission. (It was determined that requirement could be imposed without running afoul of the state Constitution because the individual would be a private citizen, not a lawmaker, when a violation occurred.)
The bill has changed radically and been watered down. Initially, the hope was to have an executive director and a crew of three investigators, but now, after sticker shock exceeding $500,000, the commission as now proposed would be staffed by a half-time director who would essentially review or evaluate ethical complaints. In most cases, that staffer would refer complaints to the Attorney General or state Human Resources officials for investigation and enforcement.
The commission would have five members who would serve three-year terms. In addition to serving as a review panel, the commission would provide the Legislature a report to track trends in the ethical issues coming up.
There was also a hope that State Ethics Commission could take a lead role when campaign finance allegations were filed, providing an initial review and determining whether they should be investigated by the Attorney General. The hope was to depoliticize the process of what cases to prosecute, but the idea was dropped as unrealistic because many of the complaints are filed days before an election and require immediate review. Therefore, the AG’s office is expected to still take the lead role when campaign violations are filed. (It was also hoped a State Ethics Commission could avoid the conflict when a complaint is filed against the Attorney General, as happened to Bill Sorrell last year.)
Nonetheless, the main sponsor of the bill, Sen. Anthony Pollina, P/D-Washington, says the Legislature is making an important first step. He, along with Allen Gilbert of the Vermont chapter of the ACLU, say the commission’s scope and requirements may change as times goes along, but that it’s important to get a commission in place.
“I would have preferred a stronger bill with a staff that was to able to do independent investigations and be more active,” Pollina said. “But given the fact that right now Vermont has no kind of Ethics Commission at all, I think this really is a good start.”
The Senate Government Operations committee is expected to vote out the bill on Tuesday, when it will head to the Senate floor. It’s late in the legislative process and with a price tag of a half-time position and benefits, perhaps $50,000 or so, Benning worried it was late to add to the budget and that “the screeching sound you heard out there was the sound of Appropriations killing this bill.”
Meanwhile, Gov. Peter Shumlin, who put in a code of conduct for his administration, has his pen ready to sign the bill.
“I think most Vermonters understand that we have the cleanest, most honest open political process of the 50 states. Having said that, Vermonters would feel a lot better by having an Ethics Commission when things do wrong, as they do in Senate in this very well documented case,” the governor said, referring to McAllister.
