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Presiding Officers’ Advisory Committee on Legislative Ethics
September 13, 2006 meeting

DRAFT MINUTES

Members in Attendance: Sandra Featherman, Harrison Richardson, Peter Pitegoff, Cal Mackenzie, John Rensenbrink, Jonathan Wayne, Edie Leary, Kris Ossenfort, Roger Mallar, Deb Plowman, Mike Carpenter, Marilyn Canavan

Gifts and Legislator Training

Dr. Featherman invited members of the public to testify on educating legislators about the ethics law. Michele Greenier came forward and commented that ethics should not just be taught, but must be put into practice by legislators as well.

Undue Influence

Staff briefly reviewed the current law on undue influence and members then discussed the current law and possible changes. Dr. Featherman posed the question: why are attorneys exempt from the prohibition against representing people, for compensation, before state agencies?

Jonathan Wayne commented that the exemption may be provided so that members whose professions involve state agencies don’t suffer economic hardship. He observed that there isn’t really a danger if the legislator had no oversight role or other connection with the agency. The real concern expressed by the public is about legislators who serve on the oversight committee for that agency.

Deb Plowman, Peter Pitegoff and other members urged caution in prohibiting representation before state agencies because Maine has a part-time Legislature, does not pay enough to support a family, and attorneys and other professionals need to be able to carry on their professions. Prohibiting that might have a chilling effect on the willingness to run for office.

Cal McKenzie observed that representing a person in court is a different issue from representation before a state agency. Courts can decide for themselves without being influenced. He questions whether undue influence of state agencies is happening. Is it a problem?

Some members expressed the opinion that the real problem is with a substantive conflict, i.e., the legislator has influence over the subject matter and the agency with which he or she is dealing. Simply being in the Legislature is not a threat.

Members discussed cases where legislators brought forth bills that help their clients or their practice. Cal Mackenzie said that that seemed like an abuse of position to make oneself more employable.

Dr. Featherman suggested changing the law to prohibit appearing before a state agency if you sit on that agency’s oversight committee.

Roger Mallar commented that he is concerned about maintaining a citizen legislature, but also feels that undue influence may be a greater problem than conflict of interest. Votes on legislation are taken in the public eye; administrative proceedings are usually not public.

Dr. Featherman restated a suggestion that the law be amended to state that a legislator cannot represent a person, for compensation, before an agency over which the legislator has oversight. John Rensenbrink moved to propose that language; Marilyn Canavan seconded the motion for the purpose of discussion.

Members expressed some concern that this prohibition might deprive committees of needed expertise, since people who practice that profession might choose not to serve on that committee. John Rensenbrink commented that this would not prevent a person from serving on that committee; it would simply prevent the dual situation of serving on the committee and continuing to practice before the agency.

Deb Plowman suggested that greater disclosure of interest might be a better solution than prohibiting representation. Similar to the law relating to contracts.

Cal Mackenzie wanted people to have a chance to comment on this. Maybe there is a middle ground, such as prohibiting a person from making an appearance before the agency in person, but allowing written communication.

John Rensenbrink said it would be fine to have more disclosure and also to have more specificity of who and what is prohibited.

The motion to approve the language was tabled.

Members asked for more information on undue influence (where do we stand versus other states; what other options are there?)

Ethics Commission Procedures; Filing of Complaints by the Public

Dr. Featherman presented for discussion Harrison Richardson’s draft legislation regarding changes to Ethics Commission procedures.

Mr. Richardson’s draft, reflecting past committee discussions, sets forth the following changes:

• Allows any person to file an ethics complaint; commission review would be determined by majority vote of the members (or 2 if there are vacancies)
• Allows any person to request an advisory opinion from the Commission
• Allows the Commission to address complaints about a current member of the Legislature involving actions within the past 6 years
• Allows complainants to be present during proceedings, notwithstanding the confidential nature of a complaint
• Requires Commission hearings, if ordered, to be public
• Provides that ex parte communications are not authorized
• Allows a person who has been ordered by the Commission to pay defense and investigation costs to appeal that order to Superior Court
• Narrows language regarding confidentiality of commission records regarding a complaint by removing the words “in the conduct of its affairs”

Discussion of the Draft

Public Complaints

HR: Commission rules can set up a screening process for complaints, a preliminary review for form and sufficiency. There are draconian penalties for filing a frivolous complaint.

RM: Be careful about confidentiality if you allow public complaints

Advisory Opinions

HR: Exec Director should be the only staff person who gives advisory opinions

SF: Exec Director advisory opinions should be written; there needs to be a record

CM: A written record is protection for the legislator. Gives them a safe harbor in case there is criticism from the press ort public

JW: Some people don’t want a written record; that may constrain communication. I can always give them a letter or e-mail if they ask for it

If someone calls to ask a question and staff makes notes about the inquiry, would that be a public record subject to release? Would lack of confidentiality constrain people from calling?

Following a brief break for lunch, Dr. Featherman spoke about a letter from Joseph and Michele Greenier, asking that the Advisory Committee conduct an investigation of the recent appointment of Michael Friedman, the independent member to the Ethics Commission. Dr. Featherman ruled that the request was not within the charge of the Advisory Committee, and declined to ask the Advisory Committee to conduct an investigation.

Six-year look-back

CM: Does the Legislature have authority to punish a person who isn’t in the Legislature?

JW: Legislature can’t sanction past member, but it would be an appropriate outlet for people to have their complaints heard. It may also give the Commission an opportunity to discuss and give guidance on an issue even if there is no sanction involved. Also, Commission can pass information along to the Attorney General if there is evidence of a criminal action.

SF, PP: It’s odd for the Legislature to deal with a person who isn’t in the Legislature

Confidentiality

MC: When someone files a complaint, it’s extraordinarily harmful, even if you did nothing wrong

MCanavan: In Wisconsin, all complaints and the fact that a complaint has been filed are confidential. Our law says that the complainant can’t disclose the complaint

What happens of the general nature of a complaint becomes public – can the commission comment?

What Commission hearings should be open? General consensus to keep the initial hearing confidential (the hearing that determines whether commission will investigate the complaint).

Should all Commission proceedings other than the screening proceeding be public? Currently, only the Commission’s findings of fact and opinion are public records. If meetings are public, anything that is released at the meeting might become public record. This needs to be clarified

MCanavan: Make more clear what the Commission does in screening a complaint.

Commission can define its own rules on processing complaints.

Dr. Featherman asked for a show of hands for approving the concept draft set forth by Harrison Richardson, acknowledging the need for changes and additional discussion about confidentiality and more specificity about the process. There appeared to be a consensus among members, although Dr. Featherman made clear that this was not a final vote.

Legislator Training

CM: Find some way to make it more interesting. Some way other than lectures. Perhaps use the scenarios that the committee reviewed in the August meeting.

Add mandatory attendance for legislators? Current law mandates that the Commission and Atty General give the training; it doesn’t actually require legislators to attend.