Presiding Officers’ Advisory Committee on Legislative Ethics
July 13, 2006 meeting
DRAFT MINUTES
Members in attendance: Sandra Featherman, Harrison Richardson,
Peter Pitegoff, Cal Mackenzie, John Rensenbrink, Phyllis Gardiner,
Dick Thompson, Jonathan Wayne, Edie Leary, Kris Ossenfort, Phil
Bartlett, Roger Mallar, John Robinson, Deb Plowman, Mike Carpenter,
Marilyn Canavan
The meeting began at 10:00 with an opportunity for public testimony
on the two scheduled topics: conflict of interest and lobbyist
regulation.
Mary Mahoney, a private citizen, provided testimony that state
government needs to be more transparent and that the legislature
is not meeting the oversight obligations they already have. Later
in the meeting, Ms. Mahoney asked to testify again; in the interest
of time, the committee suggested that she provide written comments.
Nick Bennett of the Natural Resources Council of Maine provided
written testimony and oral comments. Mr. Bennett discussed the
membership of the Ethics Commission and asked whether there should
be a waiting period before a former legislator may serve on the
Commission. Mr. Bennett also spoke of a recent citizen’s
complaint to the Commission, which the Commission chose not to
pursue because it hadn’t been filed by a legislator. He questioned
whether process improvements are needed to provide more access
to citizens who are concerned about a potential conflict of interest.
Representative Robinson asked how Mr. Bennett would empower the
Commission to differentiate between complaints file by paid staff
of a special interest group and complaints filed by true private
citizens.
Mr. Richardson suggested that, in order to minimize frivolous
complaints from the general public, the same sanctions be applied
as those for frivolous complaints from legislators, namely, attorneys’ fees,
costs of investigation, etc.
Mr. Richardson expressed concern about the process surrounding
the recent citizen complaint, particularly that there seemed to
be ex parte communication between the Commission and one of the
parties to the complaint, the legislator in question. His understanding
was that the Commission’s deliberations were conducted in
executive session with the legislator and his attorney present,
but excluded the complainant.
Senator Plowman asked why the complainant didn’t solicit
the assistance of a legislator to file the complaint, thereby ensuring
that the Commission would undertake an investigation?
Mr. Thompson asked for clarification of what happened in this
case; did the Commission choose not to proceed with an investigation
based on the merits of the complaint, or did they choose not to
even address the merits of the complaint because the complaint
had been filed by a member of the public? Mr. Wayne clarified that
the legislator in question sought an advisory opinion on the propriety
of his service on a particular committee, and subsequent to that
request, the complaint was filed. The commission decided to issue
the advisory opinion and delay their review of the complaint until
a later meeting. Before the second meeting of the commission, the
legislator removed himself from the committee. At the second meeting,
2 members of the commission voted to pursue an investigation based
on the complaint, and two members voted to take no action. Based
on the tie, no action was taken.
Ms. Ossenfort asked Mr. Bennett if he believed that requiring
a legislator to disclose his or her salary in addition to the name
of his or her employer would have a chilling effect on legislative
service?
Several members of the committee raised the question of recusal
and the procedure by which legislators are excused from voting
when a conflict exists. There was a general concern that the
requirement of permission from a presiding officer is overly
restrictive. Dr. Mackenzie stated that recusal occurs regularly
in judicial and administrative proceeding, but that there is
a difference in that people in these situations are not representatives;
he reminded the committee that when a legislator is excused from
voting on an issue, that legislator’s constituents are
not represented. Senator Bartlett reminded the committee that
recusal isn’t the only option when there may be a conflict – that
disclosure of the potential conflict is also important.
Dr. Featherman stated that disclosure of interests is increasingly
important in corporate and nonprofit governance, and made reference
to the federal Sarbanes-Oxley legislation requiring such disclosure
in corporate governance. Dr. Featherman further suggested that
it would be valuable to review best practices on disclosure and
recusal.
Mr. Carpenter stated that regardless of the committee’s
debate on the legal definition of conflict, the public knows it
when the see it, and the legislature must strive to maintain the
public’s trust.
Bruce Gerrity of Preti Flaherty testified as to his belief that
Maine’s lobbying laws are quite adequate, and urged the committee
not to get caught up in “the Abramoff frenzy.”
Mr. Gerrity identified what he perceives as a major hole in the
lobbyist reporting statute – there is no reporting of the
money spent by executive branch agencies on lobbying. He stated
that agency staff are present in the state house, and are not merely
presenting information, they are advancing a policy position and
actively lobbying.
Mr. Gerrity cited a potential chilling effect of strengthening
the conflict of interest laws, suggesting that stronger laws would
increase the likelihood of political witch hunts.
Dr. Rensenbrink asked how we can ensure that legislators hear
the voice of those who don’t’ have money to hire paid
lobbyists? He stated that access to the opinions and expertise
of those not employed as lobbyists goes to the heart of a successful
democratic process. Mr. Gerrity replied that each legislative committee
has a nonpartisan legislative analyst to provide objective information
and analysis to legislators, and that the committee process gives
great deference to individual citizens.
Susan Goucher, representing the Maine Association of Broadcasters
testified in support of strengthening the conflict laws. She stated
that the appearance of a conflict constitutes a conflict, and recommended
that the legislature remove the hurdle of getting a presiding officer’s
approval before recusing oneself from voting. Ms. Goucher also
spoke against the concept of executive session in the Ethics Commission,
stating that the public’s business should be conducted in
public, particularly when dealing with the conduct of a public
official.
Charlie Soltan, a registered lobbyist, testified next. He agreed
with Mr. Gerrity that there is a need for reporting of state agency
lobbying, adding that the public should be aware of the amount
of lobbying that goes on. Mr. Soltan cautioned against lowering
the threshold for registration of lobbying work; he stated that
requiring registration for someone who lobbies less than 8 hours
in a month would have a chilling effect on public participation.
Steve Hirshman of the Conservation Law Foundation provided testimony
including recommendations for improvements to the ethics process.
He stated that membership of the Ethics Commission is the first
issue that should be addressed.
Mr. Hirschman discussed his experience in filing the recent complaint
against Representative Saviello, and his concerns about the way
the process was carried out. In particular, he is concerned about
the lack of clear process for complaints by non-legislators, and
that the commission chose to deliberate in a closed session about
whether they would pursue the complaint.
Mr. Wayne asked if Mr. Hirschman felt there were adequate protections
against undue influence, in particular, against legislators representing
their employers before state agencies.
After a brief lunch break, John Delahanty of Pierce Atwood testified
before the committee. Mr. Delahanty stated that he believes that
the lobbyist registration and reporting laws work well, but identified
one anomaly: If an organization or entity registers as a lobbyist,
the organization doesn’t get to name an individual lobbyist
as part of their $200 filing fee – they have to pay an additional
$100 to name an associate lobbyist. Mr. Delahanty also informed
the committee that the commission’s roster of registered
lobbyists is regularly used as a mailing list for fundraisers and
other events.
Mr. Delahanty began to refer to factual details of the Saviello
complaint, at which point Dr. Featherman stated that this commission
is not about any particular case or any individual, and it is not
the commission’s role to review anyone’s conduct. Rather,
it is the commission’s role to review the process, the standards
of conduct, etc. Mr. Delahanty stated that, in his experience,
legislators general act professionally and ethically. He agreed
with other speakers that it would be an improvement to require
disclosure of lobbying by staff of the executive agencies. He agreed
with committee members that the governor should be able to direct
his staff to promote his agenda, but stated that there were instances
when individual agency staff promotes their own agenda, and that
the public is entitle to know who is doing it.
Mr. Wayne asked whether Mr. Delahanty believes that the ban on
solicitation of lobbyists works well. Mr. Delahanty replied that
is does work well to prevent political fundraising during the session,
but that he would like to see a ban on all contributions by lobbyists.
The committee then began their review of the agenda items. Mr.
Carpenter suggested that the committee request more time to complete
their work.
Mr. Thompson asked for a briefing of the process around the Saviello
complaint, stating that it might illuminate procedural problems
to be addressed.
Dr. Rensenbrink suggested that the committee focus on the existing
law defining conflict of interest and ask whether the law needs
to be changed or simply be interpreted more clearly.
Dr. Featherman stated her belief that recusal from voting is the
major issue before the committee; when should it happen, and who
decides. Dean Pitegoff added that another major issue is public
access; to what extent does the public have access to raise questions
of legislative ethics?
The committee discussed the process by which by which members
of the Ethics Commission are appointed. The committee agreed that
the agenda for the September meeting should be amended to allow
for review of this process.
Mr. Mallar suggested that it would be premature at this point
to ask for more time to conduct the committee’s work. He
suggested that the committee work through a few more sessions before
determining whether more time is needed.
Ted Potter provided an update of the process of commission appointment.
He reported that he had confirmed with the Attorney General’s
office that the 5th commission member does not have to be an independent,
but that the statute prohibits more than two members of any particular
party. Representative Canavan and Ms. Gardiner provided a history
of the process for appointment, which was significantly revised
with the passage of the Clean Elections Act in an effort to ensure
fairness and balance and to reduce partisanship. They stated that
the requirement that the partisan leaders must agree on the list
of 3 potential members has caused delays in the past. Dr. Featherman
suggested that the committee issue a letter urging legislative
leadership to finalize the three names and submit the list to the
governor as soon as possible. Mr. Thompson argued that the committee’s
charge is to review policy and issue policy recommendations, not
to comment on current political issues. Mr. Carpenter agreed, and
the committee agreed to take no action. Staff reassured the committee
that legislative leadership is very close to submitting the list
of three names to the Governor.
Ted Potter then distributed a memorandum he had drafted concerning
existing legislative rules around conflict of interest. Representative
Robinson questioned the language in the statutory definition
of conflict requiring a “direct substantial personal interest,
distinct from that …” He asked how to quantify a
substantial interest. Mr. Carpenter suggested that a requirement
for a “substantial interest” may not be necessary.
Mr. Thompson raised the question of the complaint process for
private citizens, suggesting that the committee recommend clarification
of the commission statute so that the commission’s ability
to act “under their own motion” includes the committee’s
motion upon receiving information from the general public. This
way, the public complainant wouldn’t necessarily be made
a party to the proceeding.
Mr. Carpenter commented that much of the problem with the Saviello
case is the secrecy involved. He suggested that there is a need
for some closed, Grand Jury-like process to weed out frivolous
complaints, but beyond that the process should be open. He stated
that there is a need to protect Due Process rights, and that the
commission shouldn’t invite some parties into executive session
and exclude others.
Dr. Featherman reminded the committee that the question of commission
process/access/sunshine is a different issue that conflict and
recusal. Mr. Thompson suggested that the process question appears
to be easy to solve, and the committee might want to address it
early in its deliberation.
Dr. Featherman stated that conflicts of interest should be resolved
at an early point, on the floor, and should never need to come
to the commission. Rep. Canavan added that legislators are generally
vigilant about conflicts, and are eager for guidance. Dr. Featherman
stated that recusal should be the responsibility of the individual,
and that legislators should not have to seek permission to be excused.
Mr. Richardson asked if anyone could explain the intent of the
legislature in requiring permission. Senator Bartlett said that,
while he didn’t have first-hand knowledge of the specific
intent, he assumed that it was intended to prevent people from
avoiding hard votes by claiming conflict. He reminded the committee
that there is a big difference between recusing oneself for cause
and abstaining or “taking a walk.” Rep. Canavan agreed
that she assumes the intent of the rule is to reinforce the legislator’s
duty to vote.
Mr. Carpenter suggested that asking for permission to be excused
is sometimes done for political cover, because the legislator likely
won’t be excused; if the legislator is then questioned, he
or she can say “I asked to be excused, but was told I had
to vote.”
Ms. Gardiner posed a question to the committee about a provision
of §1014(1)(e), which states that a conflict exists “Where
a Legislator or a member of his immediate family accepts or engages
in employment which could impair the Legislator's judgment.” She
asked if a standard as subjective as “could impair” should
be included in the statute. Several members of the committee responded
that the determination of a conflict is very often subjective.
Mr. Carpenter moved that the committee recommend deleting the
word “substantial” from the definition of conflict
in §1014(1), leaving the definition “Where a Legislator
or a member of his immediate family has or acquires a direct substantial
personal financial interest, distinct from that of the general
public, in an enterprise which would be financially benefited by
proposed legislation…” Mr. Richardson seconded the
motion.
Dr. Mackenzie suggested that there is usually some de minimum
standard for these kinds of definitions. Mr. Carpenter suggested
that the requirement that the benefit be “distinct from that
of the general public” would be adequate. Senator Bartlett
asked if a legislator with a mutual fund including 1% stock in
a paper company would create a conflict under this definition.
Mr. Carpenter suggested that if a legislator in that situation
feels that it will impair his or her judgment, the legislator should
recuse himself. If not, the legislator should at least disclose
that ownership before voting. Rep. Robinson suggested that it is
not necessary to remove “substantial” from the definition
if the statute defined it more clearly. Mr. Thompson stated that
removing “substantial” wouldn’t change the subjective
nature of the standard.
Rep. Canavan noted that the committee’s discussion illustrates
the complicated nature of this statute and the need for a more
concise, precise standard. Sen. Plowman cautioned the committee
against stepping to far into the work of a legislative committee.
She argued that the committee doesn’t have the time to draft
new legislation; rather, the committee should look at the larger
picture. Dr. Featherman argued that this definition is the single-most
important issue that the committee will deal with, and it deserves
substantial time and attention. Dean Pitegoff agreed with Sen.
Plowman, cautioning the committee against getting into legislative
drafting, which could have extremely complicated implications on
other statute. Dr. Rensenbrink stated that the language of this
definition is important, and suggested that committee staff work
on drafting clearer language for the committee’s review.
Mr. Richardson moved to table Mr. Carpenter’s motion. The
motion was seconded by Mr. Thompson and prevailed without debate.
Next Steps
The committee turned to identifying next steps and planning for
future meetings. Dr. Featherman suggested that the committee wait
until the end of the next meeting to determine if they should ask
for more time – she suspects that future meetings will require
less time for testimony, leaving more time for committee work.
If that is not the case, the committee will consider asking for
more time.
Dr. Featherman asked committee members to forward any suggestions
for revised definitions of conflict of interest to Ted or Kate
within 10 days, and asked Ted and Kate to work with Jonathan Wayne
and Phyllis Gardner to draft proposed changes.
In addition, staff will research best practices from other state
legislatures on conflict of interest and recusal. All materials
will be forwarded to committee members at least 10 days before
the next meeting.
The committee discussed whether they should try to draft proposed
statutory changes or simply propose changes in principal and leave
the drafting to the legislative process. The committee left the
matter for further discussion at the next meeting.
Mr. Carpenter moved to close the meeting. Dean Pitegoff seconded
the motion, and the meeting ended shortly after 2:00.
