If there’s one topic that is constantly in the news today, it’s the topic of ethics. It seems impossible to pick up a newspaper or listen to a news broadcast without a prominently featured ethics-related news story. The ethical issues that have recently arisen with the new presidential administration have been widely broadcast. The leaders of the project, Reporter Richard Briffault and Associate Reporters Kathleen Clark and Richard W. Painter, have been prominently featured as ethics experts in the media when ethical issues arise. They are often asked to comment on the current news story involving ethics.
And one doesn’t even need to mention the endless stream of news stories involving politicians and the ethical implications of their actions. My job as Director of the Center for Ethics in Government at the National Conference of State Legislatures is to, among other things, monitor the state of ethics affairs in the country and be a resource for all state legislators and legislative staff. The Center fields inquiries constantly regarding ethical matters of importance from legislators, legislative staff, media, and interested citizens.
So it is in this context that The American Law Institute has appropriately created the project on Government Ethics. As aptly stated by the ALI summary, at https://www.ali.org/projects/show/government-ethics/, “This project seeks to enunciate a set of principles or best practices that will both reflect the emerging law of government ethics and provide guidelines to shape its future development. The project will focus on standards applicable to the operations of the legislative and executive branches.”
Turning to the project provisions, the main areas of focus include “lobbying, gifts and other things of value given to public officials, conflicts of interest involving the private activities of public officials, the political uses of public office, lobbying and administration and enforcement mechanisms.” Much information about the project, including the latest Preliminary Draft and the approved Tentative Draft No. 1, may be accessed at the project’s website.
The project is currently organized into six Chapters, with a possible additional Chapter addressing the subject of lobbying. Currently, the project is working from the third Preliminary Draft. Chapter 1 outlines the scope, general principles, and definitions. Chapter 2 addresses gifts to public servants and financial relationships between public servants and prohibited sources. Chapter 3 addresses conflicts of interest and outside activities of public servants. Chapter 4 focuses on public benefits of public resources in elections. Chapter 5 addresses the topic of post-employment restrictions on former public servants, the so-called “revolving door” issue. Chapter 6 contains administrative and enforcement provisions. An additional Chapter may be added on the subject of lobbying. If such occurs, that will become the new Chapter 6, and Chapter 6 will be renumbered as Chapter 7.
While most agree that the topic of lobbying is of utmost importance, it was the feeling of the project members that the focus should be on addressing ethics issues involving public servants first, and then consider lobbying to be included in the project.
In its current version, Chapter 2 address gifts to public servants and financial relationships between public servants and prohibited sources. Here at the Ethics Center, the number one question we field relates to gifts. There is a strong public perception that gifts to public servants are inherently suspect. And it matters not whether you’re in a large urban area or small rural part of the country, the public watches with keen interest whenever a public servant receives a “gift.”
The recent decision by the U.S. Supreme Court involving former Virginia Governor Bob McDonnell garnered much attention in the media and the public eye. Governor McDonnell was charged with federal corruption for receiving over $175,000 in luxury products, loans, and vacations from a private individual when he was governor. In exchange for the gifts, the governor used his office to provide the individual with connections leading to business opportunities. The Supreme Court overturned his conviction for corruption, finding that the jury was improperly instructed concerning various informal steps which the governor took to aid the individual’s company. The Court also noted that the gifts themselves were legal under Virginia state law at the time (the law has since been amended).
Writing for the Court, Chief Justice John Roberts stated: “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.” McDonnell v. United States, 579 U.S. _____ (No. 15-474, 2016).
The term gift in chapter 2 is defined as “anything of more than nominal value.” Principles of the Law, Government Ethics § 201(a) (Preliminary Draft No. 3, Feb. 19, 2016). The draft will attempt to set a definitive fair market amount for the term nominal value. Current law in all 50 states varies greatly when it comes to the regulation of gifts to public servants. The state laws vary from absolute prohibition of a gift of any value (so called “no cup of coffee” laws) to gifts valued in the hundreds of dollars. All the state laws on gifts may be accessed at the Ethics Center’s website.
Much attention is given to gifts from prohibited sources. A prohibited source is defined as an individual or entity that does business or seeks to do business with the public servant’s agency; conducts activities that are regulated by the public servant’s agency; seeks official action by the agency; or is substantially affected differently from the general public by the official actions of the agency, to cite a few. A public servant is prohibited from engaging in a financial transaction or relationship with a prohibited source except in a few enumerated circumstances.
Obviously, certain exceptions must apply. The prohibition on gifts or financial transactions does not apply to a family member or one with a personal relationship to the public servant if it is reasonable to infer that the gift or financial transaction or relationship was primarily motivated by the family or personal relationship. Gifts of complimentary attendance at events are also exempt from the prohibition given certain circumstances.
Payments for travel, meals, and lodging are always a sensitive topic and perhaps the number one question on gifts that we receive at the Ethics Center. When a public servant travels and is subsidized by any payment, such fact immediately becomes an issue of public concern. The draft makes provision for gifts for public servants for work-related travel if such travel is found to be in the “best interest of the agency.” Id. § 206(a). The draft provides detailed provisions addressing when such payments are appropriate and gives guidance on this sensitive topic.
Finally, Chapter 2 addresses a rather extensive list of “other exceptions” to the prohibition on gifts, and concludes with the statement that any agency may adopt its own rules, regulations, or procedures that are more restrictive than the requirements found in the Chapter.
Chapter 3 addresses conflicts of interest and the outside activities of public officials. The first words in the Introductory Note read: “Public office is a public trust. Public servants are called upon to exercise discretion and make decisions that inevitably benefit some private parties and harm others. By prohibiting public servants from participating in matters in which they have a financial interest or where they may be biased, the government can help ensure that these decisions are made on the merits, with the goal of furthering the overarching public interest rather than more venal promotion of some private interest.” Id., Chapter 3, Introductory Note. I think those words set the tone for the provisions of Chapter 3 in an area that can be so very difficult for a public servant.
A public servant is prohibited from substantially participating in a matter in which he or she has a “direct and predictable effect on an economic interest of the public servant.” Id. § 301. Provisions address the need for impartiality for participation in particular matters in representing other parties. This is often part of avoiding the “appearance of impropriety” standard. The Chapter contains extensive provisions on waivers by those affected by such participation, prohibitions on acquisition or retention of certain financial interests, and restrictions on appearances and communications on behalf of others.
Chapter 4 addresses the topic of election and the use of public resources. A public official is generally prohibited from using public resources to “promote, attack, support, or oppose the campaign of any candidate for elected office.” Id. § 401(a) (Tentative Draft No. 1, Apr. 24, 2015). The provisions address advertising, travel, election-related activities during working hours, and so forth. It is worthy of note that Chapter 4 has been approved by the full ALI membership.
Chapter 5 addresses the sensitive, yet timely topic of post-employment restrictions on former public servants. The so-called “revolving door” laws have been front and center in the recent presidential campaign as then candidate Donald Trump promised to “drain the swamp.” In part, he was probably referring to former public servants who obtain good jobs in the private sector following their public service. However, there is a need to balance the experience that former public servants bring to private industry versus the need to avoid the appearance of a conflict of interest. As the ALI Reporters’ Memorandum aptly notes: “Some of the very features that make the former public servant appealing to the private sector may be a source of ethical concern, leading to conflicts of interest or an appearance of impropriety that may result in a loss of public confidence that government decisions are being taken in the public interest.” See id., Chapter 5, Reporters’ Memorandum at p. xviii (Council Draft No. 2, Dec. 11, 2015). Further, there is a need to “balance the public’s interest in preventing the misuse of public power for private benefit and guarding against the appearance of impropriety, on the one hand, with the public’s interest in being able to attract public servants who may also want to consider spending part of their careers in the private sector, on the other hand.” Id.
Indeed, this author is currently employed in the nonprofit world at the Center for Ethics in Government. I spent 26 years working for the Wyoming Legislature and gained considerable experience in public service and ethics laws, rules, and regulations and their application to public servants in the legislature. My previous experience has been valuable in performing my current duties as Director of the Ethics Center.
Lastly, Chapter 6 will contain administrative and enforcement provisions. As noted earlier, lobbying may be included in the project as an additional Chapter.
I recently had the opportunity to speak to various elected officials and higher-education personnel in the countries of Georgia and Kazakhstan. I was excited to tell them about the ALI Project on Ethics and that there will be suggested guidelines which will be applicable to any interested public official or government. The audience members were very interested to hear about this timely project. I am sure the project will be met with great interest not only in North America, but also around the globe. It is truly an honor for me to be working with this eminent group of distinguished people to bring this project forward.