Jon Margolis is VTDigger’s political columnist.
In finding Gov. Phil Scott in violation of the Code of Ethics, the Vermont State Ethics Commission has tarnished a reputation.
Not Scott’s. Its own.
Nothing in the commission’s first-ever “Ethics Advisory Opinion” is mistaken. Scott is the governor. He appoints the officials who ultimately approve and sign state contracts. One of those contracts, for $250,000 over two years, is with DuBois Construction Inc., with which Scott retains, in the opinion’s words “a direct financial interest.”
That’s because Scott, once a co-owner of the company, sold his $2.5-million interest in it at the end of 2016. But he sold it back to the company, financing the sale himself. The company is repaying him over 15 years at an annual 3 percent interest rate. Last year, DuBois paid Scott $75,000.
That’s a “direct financial interest” all right. So the commission was correct in finding that Scott is “financially intertwined as a creditor, who has an ongoing financial interest in a company that contract with the state.”
(Presumably “contracts” was intended, but grammar is not the commission’s strong suit. Its Principle 1 states that “a public official shall not have a conflict of interest in any business … that is in conflict with the performance of their duty as a public official.” That should be “officials,” plural, or alternatively, “his or her duties.”)
Furthermore, the commission is accurate in finding out that this conflict is not limited to Scott. Under the “non-delegation clause” of Principle 13 of the Ethics Code, Scott’s conflict of interest is “imputed” to the commissioner of Buildings and General Services (Christopher Cole), who approves most state contracts, and who is appointed by the secretary of administration (Susanne Young), and the secretary of administration herself, who is appointed by the governor (with Senate approval).
So the opinion is correct on all counts.
Now can we grow up?
First the politics. The opinion is a response to a request filed Aug. 31 by the Vermont Public Interest Research Group, which opposes Scott on … well, on just about everything. It defies credulity that commission Executive Director Brian Leven and his board did not realize that they were being used, that what VPIRG was hoping for was a report critical of the governor coming out … oh, how about 37 days before the election.
The Ethics Commission should not play politics. But neither should it be politically played. It was.
Leven did not return a phone call seeking comment.
As to that contract, in fiscal year 2018 the state of Vermont spent more than half a billion dollars in contracts and grants. The DuBois contract, which covers two fiscal years, represents something like three hundredths of 1 percent of that total.
The contract, “a retainer contract for earth moving services,” according to Cole, was awarded through a transparent process, in response to a “Request for Proposal (RFP),” which any construction company could see and bid on. The contract itself is on the BGS website, complete with the names of the project engineer, the contract clerk, and the purchasing and contract director.
All of it, in short, done openly, according to law, policy, and common procedure. No one with a modest purchase on sanity could conclude — or even suspect — that Scott, Young, Cole or anyone else steered this small contract to DuBois.
The company will no doubt make money, but the deal does not appear to be a windfall for it.
“It’s not a sure thing,” DuBois president Jeff Newton said (via email), “but a readiness agreement saying the contractor has the item the agency needs, at a predetermined rate, and the contractor has agreed to terms and conditions.”
It’s also possible that the state needs the company’s work more than DuBois needs the state’s money. That RFP, Cole said, first aimed at identifying qualified firms. It found 27, and had work for all of them.
“Any job we do has a contract and/or agreement to protect both parties,” Newton said. “We bid on many state construction opportunities that are put out, but have not been successful. It is a very competitive market out there.”
So sometimes DuBois bids on a state job and loses. There’s no evidence that it gets preferential treatment.
None of this means that Vermont, Scott, and DuBois Construction might not be better off had the governor cut all financial connections with the company. At the time, he said a more conventional purchase, with the buyers borrowing from a bank and paying him up front, wasn’t feasible.
Perhaps he should have been pushed harder on that, and perhaps he would have been had an ethics commission existed then, and one with the power to investigate and enforce, as this one does not.
But there was no commission when Scott announced his sale, which violated neither a law nor a rule.
The commission also concluded that the contract violated Principle 7 of the Ethics Code, which states that an official “should avoid the appearance of a potential or actual conflict of interest,” and that in this case the conflict was “apparent by the filing of this … request.”
Which seems to mean that the mere fact that somebody complained must mean that the complaint about “the appearance” of conflict is justified. That opens the door for anyone to make even a frivolous allegation of “the appearance” of conflict, confident that the Ethics Commission will agree.
Besides, appearance is in the eye of the beholder, and this commission report does the beholders no good service. It seems to accept and definitely promotes the view that politicians are in it for the money.
A few are. In some places, many are. Vermont is not one of those places. Scott is not in it for the money, and neither were any of his predecessors going back for at least the last 50 years. They all had their flaws. But not one of them was using the office to get rich.
The suspicion that they did and do is unfortunately widespread, which makes it difficult for a healthy democracy to flourish. Encouraging that suspicion is certainly unwise, and possible unethical.
