Presiding Officers’ Advisory Committee on Legislative Ethics
August 16, 2006 meeting
DRAFT MINUTES
Members in attendance: Sandra Featherman, Harrison Richardson,
Peter Pitegoff, Cal Mackenzie, John Rensenbrink, Phyllis Gardiner,
Mark Lawrence Dick Thompson, Jonathan Wayne, Edie Leary, Kris Ossenfort,
Roger Mallar, John Robinson, Deb Plowman, Mike Carpenter,
The meeting began at 10:00 with an opportunity for public testimony
on the two scheduled topics: undue influence and “revolving
door” restrictions.
Undue Influence
Dorothy LaFortune of Biddeford testified that undue influence
is rampant in Augusta, particularly the influence of the legislature
and the executive branch upon the court system. Ms. LaFortune suggested
that current undue influence provisions be amended to add:
Accountability for legislators, which she maintains does not currently
exist;
A citizens’ review board; and
Restrictions on the ability of former legislators to get other
government positions.
Steve Hinchman, staff attorney for the Conservation Law Foundation,
testified about the provisions of 1 MRSA §1014(2)(A)(1), concerning
undue influence. Mr. Hinchman stated that two of the 4 components
of the recent ethics complaint filed by the CLF alleged undue influence
by a legislator. He suggested that the statute be amended to specifically
preclude a legislator acting in conflict of interest before a state
agency. The Chair suggested that Mr. Hinchman provide any proposed
languages to committee staff.
Mr. Thompson asked Mr. Hinchman if he was suggesting that the
Ethics Commission should have the authority to prevent a legislator
from appearing before a state agency. Mr. Hinchman answered that
the Commission should have the authority to issue an advisory opinion
prior to a legislator’s appearance, and to make a determination
of inappropriate action if a complaint is filed after the fact.
Mr. Lawrence stated that we elect legislators to be influential
on our behalf, and asked when it becomes inappropriate for a legislator
to attempt to influence. Mr. Hinchman answered that it becomes
inappropriate when the legislator is acting in the interest of
his or her own pecuniary benefit. Mr. Lawrence asked if Mr. Hinchman
sees undue influence as a subset of conflict of interest.
Mr. Mallar asked if Mr. Hinchman believe that his intent can be
accomplished with a statutory change regarding legislators’ actions
alone, or is it necessary to change statute regarding the actions
of state agencies, because influence requires both parties.
Mr. Richardson suggested that the committee review undue influence
provisions in Kentucky law, and Mr. Lawrence suggested the undue
influence provisions that apply to members of Congress. Staff will
provide this information in advance of the next committee meeting
Revolving Door
Dorothy LaFortune of Biddeford testified that she sees two kinds
of revolving door in state government: one that directs former
legislators into influential positions, and one that directs public
citizens from person to person and eventually onto the street.
Ms. LaFortune spoke of specific instances of legislators who she
believes acted inappropriately. Concerning a particular allegation
about a former legislator who is an attorney, Mr. Richardson asked
if she had filed a complaint with the Board of Bar Overseers. Ms.
LaFortune stated that she had. Mr. Richardson asked the outcome,
and Ms. LaFortune said that the Board had dismissed her complaint,
that she didn’t know if a panel had been formed to review
the complaint, that she hadn’t been allowed to participate
in the review. She cited this as an example of insiders policing
themselves, and stated again her belief that there is a need for
a citizens’ review board.
Joseph Grenier testified that he believes there is undue influence
in Augusta because elected officials are representing the interests
of corporations, not those who elected. Mr. Grenier distributed
copies of Executive Order 10 FY 88/89, dated April 1, 1989, “An
Order Establishing a Code of Ethics and Conduct for the Executive
Branch of Maine State Government.” Mr. Richardson asked if
this Executive Order is currently in effect. NOTE: staff has researched
this and the Order is in effect.
Michelle Grenier testified that legislators and state officials
are currently acting on behalf of private interests, and there
is a need for officials to act on behalf of the citizens.
Committee Review
The committee began by reviewing hypothetical scenarios that present
potential conflicts of interest.
Scenario #1: legislator with a sibling affected
by legislation.
Dr. Featherman asked whether the definition of “immediate
family” is adequate. She suggested that a legislator in this
situation ought to disclose the potential conflict.
Mr. Pitegoff suggested that the issue of sunshine is likely to
come up often in these scenarios, and that the mere appearance
of impropriety might suggest disclosure is appropriate.
Mr. Thompson agreed that legislators should disclose these situations,
but asked whether the law should require them to. How to require
and how to define the situations where disclosure is required?
Dr. Mackenzie stated that the law should tell you what you can’t
do, but also what you can do – if an action isn’t specifically
prohibited by law, the legislator should feel free to vote.
Senator Plowman said that legislators have to disclose their own
financial information, but don’t have the right to disclose
the financial information of their family members or others.
Dr. Rensenbrink said that he viewed this question as a “no
brainer,” that voting in this scenario is clearly improper
because a legislator’s sibling is presumed to have better
access to the legislator than the general public may have.
Mr. Lawrence asked if the perception would be the same if the
legislator intended to vote against his sibling’s interest,
rather than to support his sibling. He reiterated the general concern
about disenfranchising a legislator’s constituents.
Scenario #2 – legislator with a high-level policy position
in a corporation affected by legislation.
Dr. Mackenzie stated that whether to vote or not in this scenario
depends, in part, on the degree of impact on the legislator’s
employer. A legislator should not vote on “special interest” legislation
that impacts only that legislator’s employer. He also stated
that a legislator should seek counsel on any vote that may impact
his or her employer.
Mr. Richardson said that a legislator shouldn’t vote if
there is an appearance of conflict.
Mr. Lawrence asked if that means that lawyers shouldn’t
vote on any bill that impacts lawyers, and legislators shouldn’t
vote if their employer is affected, even of the employer is affected
no more than other similarly situated organizations. He reminded
the committee that we elect people because they have opinions and
experience, and shouldn’t discount that.
Dr. Featherman answered that Lawyers should declare their interest
before voting or not voting on bills that impact lawyers. She reiterated
that there should be more sunshine on potential conflicts.
Mr. Thompson added that legislators are now required to disclose
their occupation and the sources of their income. He stated that
the concept that a legislator can’t vote on a bill affecting
his or her occupation is not reasonable. As an example, he hypothesized
a legislator from Bath who works at Bath Iron Works who would be
prohibited from voting on a bill that benefits BIW, greatly impacting
the prosperity of the legislator’s district.
Mr. Carpenter stated that the phenomenon of legislators acting
as point person for their employer is relatively new, and said
that the legislator’s level of authority at his or her employer
is a key issue. He argued that if a bill affects a legislator’s
pocketbook or a legislator’s child’s pocketbook, or
the legislator’s standing with his or her employer, the legislator
shouldn’t vote. This does not reach the average schoolteacher
voting on school funding. He stated that the decision should be
made by legislators on a case by case basis, and that legislators
should err on the side of disclosure.
Mr. Thompson cautioned the committee against trying to write policy
based on a few procedural questions about one specific ethics case.
He argued against changing the statutory definition of conflict.
Mr. Pitegoff reasoned that this committee may not decide to recommend
statutory changes, but the committee can be useful in establishing
basic principles and norms, including a stronger expectation of
disclosure.
Representative Robinson stated his concern is not unnecessarily
limiting the ability of legislators to vote, and that he is concerned
that external connections are transparent.
Dr. Featherman raised the issue of legislators’ financial
disclosures, and mentioned the suggestion from the Maine League
of Women Voters that these disclosures be posted on-line.
Mr. Wayne said that these financial disclosures are available
to the public in hard copy at the Ethics Commission office. Commission
staff had considered posting the disclosures online, but are concerned
that this might have a chilling effect on people’s willingness
to serve in the legislature.
Mr. Lawrence said that if the disclosures are available to the
public, the form of that availability is irrelevant, and suggested
that the disclosures be made available online.
Dr. Mackenzie advised the committee to be cautious, that it does
not necessarily improve the interest of disclosure to make these
records more available. He described the situation with federal
employees’ financial disclosures, which are often used only
by reporters looking for stories about wealthy public servants.
Mr. Richardson asked whether the availability of legislators’ financial
disclosures is widely known. Mr. Wayne answered that it is widely
known among people who are politically involved, but not among
the average constituent population.
Ms. Leary suggested that the committee’s final report include
reference to parts of the system that are working well, and suggested
that financial disclosures are among those things that are working
well, with the caveat that they need to be more widely known.
Mr. Thompson moved, and Mr. Carpenter seconded, that the committee’s
report recommend that the Ethics Commission look into ways to make
financial disclosures more accessible, including putting the information
online. The motion carried.
Dr. Mackenzie asked if there is a formal protocol for disclosing
conflicts and reasons why a legislator did or didn’t vote.
Mr. Thompson said that legislators may ask to speak on the record
at any time. He suggested that the committee may recommend that
presiding officers make clear to legislators that they have the
opportunity to speak to why they are or aren’t voting.
Scenario #3: Legislator works for a nonprofit agency that receives
state funds, and also serves on the Appropriations committee
Mr. Mallar suggested that this scenario is no different than if
the legislator worked for a private corporation.
Dr. Mackenzie stated that he encountered a similar case when he
served on the Ethics commission, that a legislator was the chair
of the committee that had oversight over the state agency where
the legislator was employed. In an advisory letter to the legislator,
the Commission recommended that the legislator refrain from voting
on any bills that affected the legislator’s salary at the
agency.
Scenario #4: legislator married to a labor union leader
Mr. Lawrence stated that unless the legislator has a direct financial
interest in the outcome of the bill, the legislator has a responsibility
to vote. However, she should disclose the connection.
Mr. Thompson stated that if her husband’s salary is explicitly
contingent on obtaining a higher level of benefits for workers,
the legislator shouldn’t vote on those bills.
Mr. Carpenter said that all of these scenarios come down to disclosure,
and that the committee needs to develop a better way to promote
disclosure.
Mr. Lawrence said that in scenarios such as these, the legislator’s
relationship to his or her spouse’s profession was clear
to voters when the legislator was elected.
Ms. Gardiner reminded the committee that the review of these scenarios
is an opportunity to determine where the committee thinks the line
should be drawn, not merely to test the committee’s understanding
of current law.
Mr. Thompson said the question for the committee should be when
and at what level to disclose potential conflict.
Mr. Lawrence said that, as a practical matter, disclosure should
happen as early as possible, ideally in the committee process and
during committee appointments.
Committee staff reminded the committee of Joint Rule 104, which
deals with conflict of interest in the committee process.
Dr. Featherman suggested that the committee’s recommendations
include a suggestion that legislators should consider and disclose
potential conflicts when identifying the committees on which they’d
like to serve. She also reminded the committee that they need to
consider the right of the individual legislator to declare a conflict
and abstain from voting.
Scenario #5: Legislator’s business partner will be affected
by legislation.
Mr. Lawrence suggested that, in this scenario, the legislator should
consider not voting, if the impact on his partner may have an effect
on the business he shares with the partner.
Dr. Mackenzie reminded the committee that, in a citizen legislature
such as ours, these are daily occurrences and people have to exercise
their judgment. Good judgment has to prevail, with the benefit
of broad consultation.
Representative Robinson suggested that the public and the press
know a conflict when they see it, and no degree of disclosure is
going to change it. Still, disclosure is important.
Scenario #6: Legislator owns a business that contracts with a
state agency, and the legislator is the chair of the committee
that oversees that agency.
Mr. Mallar disclosed that he served as Commissioner of the Department
of Transportation during a time when the Chair of the transportation
committee owned a large road construction corporation. He stated
that the legislator in question always exhibited the highest of
ethical standards.
Mr. Lawrence said that presiding officers should exercise discretion
in appointing members to committees. He also stated that he saw
no conflict in this scenario because all contracting occurs according
to a fair bidding process.
Ms. Gardiner stated that committees of jurisdiction review and
approve departmental budgets. Mr. Lawrence said that this situation
occurs frequently with legislators who review the budget of the
Department of Health and Human Services.
Mr. Carpenter stated that this is another example of in which
disclosure is necessary.
Committee staff will research best practices around conflict of
interest restrictions on committee service.
Scenario #7: Legislator, a schoolteacher, serves on the education
committee.
Mr. Lawrence said that there is no conflict for the legislator
to vote on the General Fund budget, but that more red flags appear
around voting on school construction funding that may impact the
legislator’s school district. He recommended the legislator
consult and seek guidance before deciding whether to vote.
Dr. Rensenbrink agreed, and stated that the distinction is whether
the legislator is acting and voting as a member of the public or
as a member of a special interest; whether the legislator is motivated
by the general will or by a special will. If a legislator’s
personal interest impinges on his or her capacity to exercise the
general will, the legislator needs to consider not voting.
Ms. Leary cautioned against recommendations that would discourage
people from seeking to serve on a committee that deals with their
area of expertise.
....
After a brief lunch break, the committee reconvened. The committee
agreed to reschedule the final meeting from Wednesday, November
15th, to Tuesday, November 21st.
Committee staff presented a review of existing state statute that
deals with conflict of interest and the employment relationship.
1 M.R.S.A. §1014(1)(E) refers to employment “which could
impair the legislator’s judgment.” Mr. Pitegoff asked
whether there have been formal interpretations of this phrase.
Ms. Gardiner and Mr. Wayne replied that this phrase hadn’t
been interpreted.
Dr. Rensenbrink stated that this standard is astonishingly broad.
Mr. Wayne agreed and stated that it is very subjective, and the
committee may want to recommend statutory changes which make it
clearer and easier to enforce. Dr. Rensenbrink said that if it
is not changed, it should be better defined.
Ms. Gardiner said that this provision is the only “hook” in
the conflict statute that addresses non-pecuniary benefit, and
that the committee may want to pay special attention.
Mr. Carpenter cautioned that the committee shouldn’t make
recommendations that make it easier for legislators to refrain
from voting.
Mr. Lawrence stated that, even with a clearer definition, the
decision to grant a request to recuse is still up to the presiding
officer. Mr. Thompson asked if this is an adequate safety valve
for legislators. Mr. Lawrence said that it is, because the body
has the authority to overrule the decision of the presiding officer.
There was a question whether such an overrule requires a 2/3 vote
of the body or a simple majority. Committee staff will provide
an answer at the next meeting.
Mr. Mallar stated that there is an apparent conflict in that legislators
have an affirmative duty not to vote, but still must seek permission
to abstain from voting. Mr. Lawrence stated that the presiding
officer’s decision in these situations is whether a conflict
of interest exists, so there is no problem with the language.
Committee staff presented a review of best practices around recusal
and disclosure requirements.
Committee staff then presented potential changes in rules, statute,
etc., that might address the issue of conflict and disclosure.
The first option was an amendment to Joint Rule 104 to add the
following language: “Every member of the Legislature shall
use due diligence to avoid the appearance of a conflict of interest
in regard to legislation that is before the Legislature,” and
to add a list of considerations legislators should review when
determining whether a conflict may exist.
Mr. Lawrence cautioned that regulating the behavior of members
of the legislature is a slippery slope. Mr. Pitegoff stated that
education of legislators is very important, and that aspirational
principles such as these may be helpful.
Mr. Harrison stated that legislators should be encouraged to seek
advisory opinions from the Ethics Commission. Mr. Lawrence added
that these opinions may be sought from presiding officers, as well.
Mr. Carpenter asked if it is realistic to seek an advisory opinion
on the day of a vote. Mr. Wayne said that he does provide same-day
opinions, and Mr. Lawrence suggested that the committee’s
recommendations include advising legislators to identify potential
conflicts early and seek opinions early.
Mr. Lawrence reminded the committee that the Ethics Commission
is advisory to the legislature, and that the legislature alone
has the authority to regulate the conduct of members.
Dr. Rensenbrink moved, and Mr. Richardson seconded, to approve
the first option in principle. Mr. Thompson asked if this change
would mean that legislators should recuse themselves for the mere
appearance of a conflict, or if it is merely a guideline. After
a brief discussion, Dr. Rensenbrink withdrew his motion to allow
for further refinement of the proposed rule change.
Mr. Thompson stated that Rule 104 deals with conflict and recusal,
not with the appearance of conflict. He suggested that Rule 104
should reiterate that the legislator should not vote if a conflict
exists, and should provide considerations to be reviewed in determining
whether a conflict exists. Reference to avoiding the appearance
of a conflict should be added in another rule.
Dr. Rensenbrink suggested that a new rule be created to urge members
to use due diligence to avoid the appearance of a conflict.
Mr. Carpenter suggested that the rules refer to “impairing” judgment
rather than “impeding,” to make the rules consistent
with statute.
Mr. Thompson moved to table the pending motion. Staff will draft
proposed rules amendments for review at the next meeting. The committee
agreed to take up this issue as the first agenda item at the next
meet.
