PROPOSED ETHICS REVISIONS: IMPROVEMENTS AND WEAKNESSES

PROPOSED ETHICS REVISIONS: IMPROVEMENTS AND WEAKNESSES

By David Ferguson

INTRODUCTION

Due to mounting criticism because of continuing corruption cases involving state Senators, Senate leadership is proposing changes to the Arkansas Senate’s Code of Ethics.

There are several good changes being proposed.

This is a review of the proposal.  I have divided the subject as follows:

• Congratulations on improvements proposed
• Needs further work
• Glaring omissions
• Ironic circumstances

I previously reviewed the part of the proposed rule changes taking away jurisdiction from the Senate Rules Committee and giving it to a small handpicked committee appointed by the President Pro Tempore of the Senate.  This power grab negates much of the improvements being proposed in provisions on conflict of interests and financial disclosure.  I will not be reviewing the power grab in this article because it was covered in (Senate Ethics Rule Removes Role of Senators Critical of Business As Usual).

This article is written primarily for political insiders. If it reads too much like “inside baseball” for your taste feel free to skip down to the section on ‘Glaring omissions” or “Ironic circumstances.”

CONGRATULATIONS ON IMPROVEMENTS PROPOSED

1. Additional disclosure amount. Under the current ethics law, Senators report sources of income as either being over $1,000 or over $12,500. That leaves a big gap in information. You can’t tell whether a Senator received $12,501 or $500,000 plus World Series Tickets. The proposal is an improvement because it adds a new reporting category of sources from which the Senator received $50,000 or more.
2. Quarterly updates. Under the ethics law, the Statement of Financial Interest is filed only once a year. The proposal requires Senators to update the Senate report quarterly.
3. Conflict statement. If a Senator has a financial conflict on legislation, before he or she can participate in committee or on the floor of the Senate, the Senator must file a written statement of conflict and the statement is to be read publicly by staff.
4. Closing reporting loopholes. The proposal closes some reporting loopholes existing in the current rules. In particular, it closes a loophole allowing a Senator who is an attorney or consultant to avoid disclosing that their actions benefit their clients when the legislator’s actions also benefited a segment of the population in general.
5. Financial interest expanded. The proposal expands the definition of financial interest by including an interest by the Senator or his family if one of them is an employee or consultant. Currently “financial interest” only includes situations in which the Senator or his family is an officer, director, or owns more than a 10% interest.

NEEDS FURTHER WORK

While improvement is made, some of the changes would benefit from further revision before rushing in to pass the proposal and declare victory.

1. Availability of reports. While the proposal adds to the information required to be filed, there is nothing in the rules to ensure easy access to the information. Financial disclosure and conflict of interest statements are to be filed with the Secretary of the Senate, but this likely means the documents will be put in a filing cabinet and not made available electronically. A requirement should be added to require the Secretary of the Senate to post the documents on the Senate website. Sure a few reporters and blog writes will make FOIA requests to get the information, but the public should not have to rely on the media’s report or have to individually file their own FOIA information requests.
2. Employment by an individual not included. The proposal deals with actions or financial interests advantageous to a business in which the Senator has a financial interest, but not every employer is a business. Why should the rules apply when you work for a business but not apply when you are working directly for the billionaire who owns the business?
3. Consultant narrowly defined. Improvement is made by including work as a consultant within the definition of financial interest, but the definition is more narrow than you might expect. Consultant is defined as “a person who provides expert or professional advice.” Merriam-Webster Dictionary defines it by including “professional advice or services.” Some consultants provide expert opinions and highlight the reasons to take or not take a course of action without the next step of giving advice. For example, a former legislator avoided the two-year ban on lobbying by calling himself a consultant. In avoiding being labeled a lobbyist it is likely he avoided the next step of saying “I advise you to do….” The consultant who explains the technical side of a proposal can be quite effective for a business group in tandem with a lobbyist, who is responsible for pushing for a course of action. (And yes, the legislature should consider closing the loophole that lets a former legislator avoid the ban on lobbying by being a consultant.)

4. No conflict rule when working behind the scenes. The proposal requires a written disclosure of some conflicts before participating on a bill in committee or on the floor of the senate. But much of the work of a senator on passing or defeating a bill is done outside the committee room or Senate chamber. Under the proposal, a Senator could heavily lobby his colleagues to vote for or against a bill and not have to disclose a conflict as long as he didn’t participate in committee or on the floor. And if the goal of the Senator is to kill the bill there is not a need to cast a vote against a bill – a non-vote is just as effective as a “No” vote in stopping the other side from getting the needed majority.

GLARING OMISSIONS

1. Medicaid business interests. Missing is Senator Bryan King’s proposal to require reporting of business relationships between legislators and Medicaid providers. King’s proposal is more important than ever because of the expanding story of Medicaid corruption involving Senators. King’s bill put the burden of reporting on the Medicaid providers and that cannot be done by Senate Rule, but the same can be accomplished by having the Senators report their business dealings with Medicaid providers.
2. Senator who is an attorney or consultant. The proposal also fails to address Senator Linda Collins-Smith’s bill to prohibit attorney-legislators and consultant-legislators from representing clients before the Senate. While the proposal improves the disclosure requirements for attorney/consultant legislators, that is a far cry from prohibiting attorneys and consultants from essentially using their practices as lobbying businesses under the guise of professional services. With Senator Jeremy Hutchinson’s retainers from Preferred Family Healthcare being called bribes this is no small issue.

LACK OF SENATE OPENNESS

If the Senate is to begin building public trust it must change the way it does business in the shadows.

(A) Video archive. If you are going to improve the ethics of the Senate the very first step is to make its proceedings more accessible to citizens.  Videoing and archiving the video of Senate proceedings including Senate committees are needed to repair the public perception of the Senate as a body that tries to hide from the public. Unfortunately, many Senators (public servants) prefer to have an audience primarily of lobbyists and school children on a Capitol tour.

(B) Publishing committee roll call votes.  If you are determined enough, you can get a copy of a roll call vote taken in a Senate committee, but they don’t make it easy.  The committee roll call votes and other committee actions should be posted as part of the bill history on the General Assembly’s webpage.  This would not impede Senate operations because automation and posting can easily be handled by the staff of the Bureau of Legislative Research.

(C) Record all votes.  How did your Senator vote? Many votes are taken by voice vote leaving you with no idea how your Senator voted.  Recording all votes would not be a burden to the Senate.  Committee roll calls are quick since there are only eight Senators on subject matter committees. In the Senate chamber an electronic voting system to record all votes should speed up Senate proceedings by not spending as much time on calling the roll. An electronic voting system for the Senate is not an issue of cost or difficult technology. A more likely impediment to progress is the fact the current system allows Senators to spend time out of the chambers without the public being aware.

IRONIC CIRCUMSTANCES

1. Ethics course in between lobbyist events. The proposal requires senators to take a Senate approved ethics course after the elections. (By the way, the Arkansas Ethics Commission has always been available to assist.) Here is the irony. The ethics course is likely to be taught when the Senate has its organizational meeting/orientation, which is packed with lobbyist events providing Senators free lobbyist meals and drinks. Yes, it would be the full training experience!
2. Handling the ethics rule announcement. Senate leaders unveiled their ethics proposal … in the smallest, most out of the way committee room in the Capital. Did the Senate provide a video of the press conference? No. A video exists from Kenneth Wallis but without it the Senate was happy for you not to see. Can you read the proposal on the Senate website? No.  I found a copy posted in an article by Max Brantley on the Arkansas Blog, a liberal publication. Thanks Kenneth and Max for doing the job the Senate fails to do.

GENERAL ASSESSMENT

1. The proposed rules on conflicts of interest and financial disclosure are improvements. But the proposal needs work to address some weaknesses.
2. The number of Senate ethics issues not addressed is disappointing. Not incorporating legislation from Senators King and Collins-Smith ignores the current woes in the Senate.
3. The power grab to give the President Pro Tempore and a few of his allies control over the ethics process is embarrassingly bad.

FOLLOW UP ARTICLE

I didn’t intend to write any more on ethics rules and laws, but I will do a follow up to help you understand the overall picture with regard to ethics in the Arkansas legislature.

While this article is basically written to provide details to insiders of the legislative process, I will make the next article on this subject more of a bird’s eye view of ethics in Arkansas.

David Ferguson is a former Director of Arkansas’ Bureau of Legislative Research, having a thirty-two-year career as an attorney for the Arkansas legislature.  After retirement from state service his primary focus has been beef cattle farming. He is also a former officer of Conduit for Action.