Editor’s note: This commentary is by Barbara Crippen, who is policy coordinator for Campaign for Vermont. She formerly was a public service lawyer for the State of Vermont for 26 years.
[T]he ethics bill, S.184, as originally introduced by Sen. Anthony Pollina, and prompted by Campaign for Vermont had teeth. It created a code of ethics for legislators and executive branch officials and created a fully staffed ethics commission to investigate and adjudicate violations of this code. It also transferred authority for the investigation and prosecution of campaign finance violations from the Attorney General’s Office and local state’s attorneys to the commission. The bill had strong support and no opposition. Yet S.184 as passed out of the Senate Government Operations Committee is what Sen. Pollina himself described as “a shadow of its former self.”
Mostly, the end result is a one-person office with a five-member volunteer board that serves a referral and tracking function. Complaints made to the commission are simply farmed out to other agencies or internal legislative oversight panels for closure or follow-up. The actions taken or not taken are then reported back to the commission.
The stated reason for gutting the bill is money. Creating an expensive new state agency in a bad budget year was never too realistic. But an underlying theme throughout the hearings was turf. While there were no outright objections to the bill there were many expressed “concerns” sounding this theme.
First and foremost was the concern about separation of powers. This is turf in the constitutional sense; each of the three branches of government can only exercise its own powers. One branch cannot usurp the powers of another branch. This principle applies to policing the ethical conduct of members of that branch. For example only the Legislature itself can regulate the conduct of its members with respect to “core legislative functions.” In similar fashion the judiciary regulates the ethical conduct of judges and lawyers. While the judiciary’s code of ethics is well developed, training is readily accessible and advisory opinions and adjudicated complaints are publicized, the judiciary already has its own fully staffed enforcement office. The Legislature has nothing comparable. It had to stumble through creating a process to suspend a member for allegations of criminal behavior that included allegations of sexual misconduct involving a legislative aide.
The Legislature is currently developing ethical standards by way of the House and Senate Committees on Rules. The potential for watered-down standards is huge. The extent to which members of the public will have any influence over these rules remains to be seen.
In the end all of the concerns were addressed by eliminating different aspects of the bill. This was made easy by the lack of any serious commitment to funding.
The Government Operations Committee, left with the idea of a commission that could only regulate the conduct of the executive branch, was faced with the concern about overlap between the jurisdiction of the state’s Department of Human Resources (DHR) and an independent ethics commission. DHR insisted that it had its own obligations regardless of what a commission might do. This raised the specter of two investigations of the same conduct and the possibility of different outcomes. At the same time, it came to light that DHR’s code of conduct is hopelessly outdated. For example there is a prohibition against “embarrassing the state of Vermont.” DHR also acknowledged that it is their practice to inform management of complaints by subordinates and there are no real confidentiality standards. Another less than reassuring aspect of DHR complaints is that disciplinary decisions are left up to management. A recent high profile whistleblower case
shows the perils of bringing questionable behavior to the attention of management; a state employee was fired for raising the issue of improper state contract awards.
Nevertheless, given the dangling possibility of imposing ethical standards on the executive branch that legislators may not be willing to apply to themselves, the Government Operations Committee thought it prudent to drop most of the code of ethics in the original bill and instead require DHR to develop a code of ethics for state employees by January of 2017.
Finally there was the matter of campaign finance regulation, an awkward topic since the elected officials who investigate and prosecute violations may themselves be the subjects of complaints. The concern here as expressed by the Attorney General’s Office is that campaign finance is a very complicated area of the law, particularly now that first amendment rights (think Citizens United) are in play. The AG’s office already has a team of specialists. So nothing changed in the way those cases are handled.
In the end all of the concerns were addressed by eliminating different aspects of the bill. This was made easy by the lack of any serious commitment to funding. It begs the question of why the bill even made it out of committee. The obvious answer is that it’s an election year, legislative leadership has publicly committed to the concept of ethics legislation and something looks better than nothing. The focus will now shift to the few remaining ethics safeguards in the bill. There are “revolving door” prohibitions. These prevent high-level executive officers from taking employment for at least a year in an area that they were personally and substantially involved in. Such officers are also prohibited from lobbying for a year in any matter where they previously exercised official responsibility. Legislators are similarly prohibited from becoming lobbyists in Vermont for a year after their last term of office. These prohibitions are at least intended to prevent office holders from using their positions for personal gain. The bill also requires high level executive officers and legislators to publicly disclose sources of income of $10,000 or more, controlling interests in businesses and state contracts and memberships on boards, commissions and other entities. This exposes conflicts of interest. That’s it as far as what’s left in the ethics bill. “Pay for Play” prohibitions against accepting campaign donations from persons bidding on or awarded state contracts were jettisoned at the last minute.
So far there has been no public outcry about pulling the teeth from the ethics bill. It’s not too late to tell the Legislature that S.184 is just not good enough.
