The Thicket at State Legislatures

Rules of Legislative Conduct

by Karl Kurtz

Colorado Senate Majority Leader Ken Gordon passed out these thoughtful suggestions for future legislators to his fellow senators yesterday on his last day of his last session in the Colorado Legislature (he is term-limited):

Gordon's Rules of Legislative Conduct
(Suggestions for future legislators)

1.  Think for yourself. If you don't have any internal values that inform your conduct here, find another occupation.

2.  Leadership: You can't always be liked and always do the right thing. If you don't have the courage to sometimes do the right thing even though it will anger some person or support group, you should find another occupation. If you don't have courage, you may be an elected official, but you are not a leader.

3.  If you are in the majority and you can't pass a bill that you want to pass without abusing the process, then you shouldn't pass the bill.  If you can’t kill a bill that you want to kill without abusing the process, then you shouldn’t kill the bill.

Oregon Ethics Law Results in Resignations from Office

by Karl Kurtz

[Note: Based on additional information received, this post replaces an original version published on April 28.]

A new ethics law in Oregon appears to have caused 150 local government officials to leave their jobs rather than comply with the rules, according to the Los Angeles Times.  The provision that has drawn the most ire is a requirement that all government officials, even volunteer members of certain boards or commissions, disclose not only their sources of income and those of their spouses and adult household member but also the names and addresses of all children and siblings who are not members of their household.

Whenever new ethics laws or rules are debated, it is often alleged that strict ethics codes will drive some incumbents from office and hinder recruitment of candidates for office.  Aside from occasional anecdotes about someone stepping down because of new rules or a potential candidates saying that they don't want to lose their privacy, there is scant evidence that this actually occurs.  So is the fact of 150 local government officials quitting their jobs in Oregon rather than comply with the new law a big deal and evidence that this measure went too far?

According to the story, Oregon Gov. Theodore R. Kulongoski is concerned about the problem and has convened a work group to review the rules, citing the need for "balance between a public official's public responsibility and their private life."

My colleague, Peggy Kerns, is quoted in the story as saying that the Oregon law is unique in its extent and reach.  Russ Kelley, spokesman for the Oregon speaker's office, says that the financial disclosure requirements for public officials have been in place for several decades without any problem.  The only thing different about financial disclosure in the new law is that it expands these provisions to a number of local governments that were previously exempt and adds the disclosure of the names of adult relatives.  While 150 or so local officials, mostly volunteer members of commissions, have resigned rather than file the forms, thousands of others have complied with the law. 

Kelley points out that commissions made up of volunteer appointees often have major impacts on public policy and should be held no less accountable than paid, elected public officials.  Nonetheless, he said that legislative leaders are considering the need to make some adjustments to the new rules in the next session.

Update on Expulsions from State Legislatures

by Karl Kurtz

Earlier this month we reported on the expulsion of a North Carolina lawmaker from that state's legislature.  In that post we said that seven other legislators had been expelled from different legislatures since 1970.  That number should have been 15, as indicated by this more up to date list--Download expulsion_2.DOC--compiled by Brenda Erickson.  Brenda's list includes 19 other expulsions before 1970, going back as far as 1757. 

See also an ongoing story about an expulsion procedure under way in Arkansas in which the loser of a 2006 Senate race is claiming fraud in the election process and demanding that the winner be expelled from the Senate.

Unusual Eviction of Member from North Carolina Legislature

by Karl Kurtz

Meeting in special session today, the North Carolina General Assembly took the unusual measure of evicting Rep. Thomas Wright from office.  Here is an excerpt from the AP story in the News & Record:

The state House voted overwhelmingly Thursday to remove Rep. Thomas Wright from office, the first such expulsion of a lawmaker from North Carolina's General Assembly in 128 years.

The House voted 109-5 in favor of booting the Wilmington Democrat, who is accused of mishandling or hiding about $340,000 in loans and campaign and charitable contributions. At least 80 votes were needed to kick him out of office....

Only about a dozen lawmakers have been booted from office in state history, the most recent being Rep. Josiah Turner in 1880. The last to face such a potential fate, former House Speaker Jim Black, chose instead to resign in 2007 as prosecutors closed in during a corruption investigation that ultimately sent him to federal prison.

Wright remains defiant, insisting he has done nothing illegal. He is scheduled to stand trial later this month in Wake County on charges almost identical to those considered by the ethics panel.

GOP Rep. Paul Stam, the ethic committee's vice chairman, was blunt in his assessment of the evidence presented at the hearing last month.

"This is really bad behavior. This is stealing. Technically what it is, is embezzlement," Stam said Thursday before he voted to expel Wright. "This kind of behavior is not acceptable, to me, to you, to anyone ... it is unbecoming to a member of this body."

A 2006 NCSL survey of the states showed that expulsions are also rare in other states.  Since the 1970s we found only seven cases of members being expelled from state legislatures.

You can find much of the documentation of the case on Gerry Cohen's blog, Drafting Musings.

Colorado Ethics Law is Back

By Jan Goehring

The Colorado Supreme Court struck down an injunction that had temporarily stopped Amendment 41, a tough ethics law passed by Colorado voters in 2006. The law prohibits lawmakers, government employees and their families from accepting gifts that exceed $50. Lawmakers may not take anything of value from lobbyists. The amendment also establishes an ethics commission to hear complaints.

The plaintiffs, a group of non-profit organizations and citizens, challenged the law in the district court claiming the gift ban provisions were vague and overbroad and violated their constitutional right to speech, assembly and petition. The district court issued a preliminary injunction. The state appealed.

The Supreme Court determined that the law was not "ripe" for review because the commission had not yet been established and the amendment implemented. The court reasoned:

Perhaps, in the future, there may be truth to the concerns expressed by Plaintiffs, but that is for the Commission to consider as it enforces the Amendment, not for this court at this time. For now, these fears, which undoubtedly have caused Plaintiffs and others much anxiety, are merely speculative interpretations of what might occur once the Commission is operative. We refrain from entering this sphere of uncertainty.

The many questions about the scope and effect of Amendment 41 remain unanswered, for now. According to the Denver Post, House Speaker Andrew Romanoff, announced the court ruling to lawmakers Monday and told them to "eat with caution."

Gift of Kidney now Legal in Alaska

by Brian Weberg

The way has been cleared for a legislative staffer in Alaska to donate her kidney to an ailing legislator.  The Thicket first reported this developing story last week.  Yesterday, Governor Sarah Palin signed legislation eliminating the limit on the value of compassionate gifts to legislators.  Staffer Susan Stancliff was found to be a transplant match for Representative Richard Foster, but the procedure would have violated the existing $250 limit on compassionate gifts.  In signing the bill, Governor Palin called Stancliff an Alaskan hero (we agree!).  Foster, who continues to recover from a stroke, is hoped to be strong enough for the procedure by April.  Stay tuned....

Ethics versus Heroism

by Brian Weberg

Alaska Representative Richard Foster (photo) needs a new kidney. Earlier this year Foster entered a Seattle hospital for treatment.  He has suffered a stroke and reportedly has heart problems along with the need for dialysis.  When the word went out that a new kidney might help him, people lined up to see if they were a match.  A match was found with a legislative staffer named Susan Stancliff.  According to reports, it was unclear whether Foster was strong enough for the procedure, but Stancliff was ready and willing.  But there was one problem.  The state's new ethics law appeared to make the gift illegal. 

Passed last year in the aftermath of FBI raids on legislative offices and the leveling of criminal charges against several legislators, the state's new ethics law invoked strict restrictions on gifts to legislators, but included an exemption for compassionate gifts that allowed members to receive items expressing comfort and care during times of tragedy or health challenges.  However, the law also placed a $250 limit of the value of these gifts.  A kidney, it seems, is worth more according to the state's ethics authority.

In response, HB 317 is flying through the legislature.  The bill is out of the House and should be on the Senate floor soon.  It lifts the $250 limit on compassionate gifts, opening the door to a gift that could ultimately save a life (although it's hard to imagine that Stancliff and Foster wouldn't kick that door open if there was an immediate need to act).

It is not unusual for legislation to have unintended consequences.  Lawmakers and their staff work hard to predict these things, but even the best analysis and prognostication cannot always predict how new laws will mesh with the real world.  In the case of Foster and Stancliff, the good intentions of Alaska's new law on ethics has collided head on with larger questions of personal health and acts of heroism. 

Best wishes to Rep. Foster and to Ms. Stancliff.  We'll keep you posted on their progress.

Poll Results: Increased Partisanship in Legislatures

Our poll about the causes of increased partisanship in legislatures, which was based on the posting, "Things Ain't What They Used to Be and Never Were,"  was probably the most complicated question that we have posed in The Thicket.  The question read, "Many believe that partisanship in legislatures has increased, and civility and camaraderie have declined.  What is the primary cause of this in your state?"

Seventy-six readers responded to the question. Thirty-five (46%) of you said that the cause was increased partisanship nationally, 12 (16%) chose ethics laws/term limits, 8 (11%) picked general changes in social relationships, 7 (9%) blamed the media, and 4 (5%) clicked on greater diversity/complexity of society and government.  The remaining 10 (13%) respondents disagreed with the premise of the question, presumably because they don't believe that partisanship, civility and camaraderie have declined in their state's legislature.

Gas Pipeline, Crime Package, Ethics Highlight Alaska Session

by Bob Boerner

The 25th Alaska Legislature wrapped up its first session on time on May 16, having addressed a wide variety of important legislative priority issues.

The biggest item on the agenda was Governor Sarah Palin's AGIA - the Alaska Gas Line Inducement Act, which the Legislature passed substantially as the administration requested.   The AGIA sets out guidelines for companies wishing to compete for the right to build a gas line in the State of Alaska.

The Legislature passed an omnibus anti-crime bill, which tightens up on state laws relating to sexual offenders, incarcerated criminals, traffickers in prostitution, and other areas of the law, closing loopholes and protecting innocent victims.  And, it passed ethics legislation that addresses many of the critical issues of the legislative and administrative branches.

The Legislature was not able to reach agreement on several issues including education funding and the formula that distributes state funds to school districts and classrooms throughout the state; revenue sharing with local communities; and the funded liability accruing to the public employees' and teachers' retirement systems.

Perhaps the most newsworthy story in 2007 was the federal investigation into bribery and corruption in the Legislature.  The U.S. Department of Justice recently revealed VECO Corporation, an oil pipeline service and construction company, was offering state legislators bribes to influence decisions worth tens of billions of dollars.

Two top executives of VECO Corporation have pleaded guilty to federal bribery charges and three state lawmakers they are accused of bribing are awaiting trial. Other elected officials have yet to face charges, though the U.S. Department of Justice says they participated in the schemes. A fourth state legislator faces separate federal bribery allegations.

[Bob Boerner is NCSL's liaison to the Alaska Legislature.]

Colorado Ethics Initiative Blocked by Court

by Karl Kurtz

In February we reported "Ethics Initiative Gone Awry?" about Colorado's Amendment 41, which was approved by voters last November and amended the state constitution to prohibit state or local officials from accepting anything of value from registered lobbyists or gifts of over $50 from any "person."  The initiative drew national attention when Colorado's Attorney General ruled that it would prevent a government official's child from receiving a college scholarship or a state university professor from accepting a Nobel Prize.

A group of government officials and nonprofit organizations filed suit to block the provision, saying that it was overly broad, an invasion of personal property and a violation of free speech. Yesterday a Denver District Court judge ruled "that the Plaintiffs' fears are well-founded, and that their speech, association and petitioning rights have been chilled."  She blocked enforcement of Amendment 41's provisions until the case can be tried on its merits or the State Supreme Court reviews her ruling.

Gov. Bill Ritter announced that the government would appeal the decision.  Legislative leaders urged legislators to continue to abide by the amendment's provisions to the extent possible and suggested that they would prefer to place more reasonable gift restrictions into statute rather than the constitution, if the amendment is overturned by the courts.

Colorado Adjourns After Shortest Session on Record

by Nicole Moore

Colorado's 2007 legislative session, which ended May 4, was set against an interesting backdrop. More freshmen lawmakers served than ever before. The Democrats controlled both chambers and the governor's office for the first time in 45 years. And everyone in the Capitol - legislators and lobbyists alike - operated under the new Amendment 41, which is one of the strictest gift bans in the nation. (The court is in the process of deciding whether it's even constitutional.)

As is usually the case, the majority party is calling it a successful session, while the minority disagrees. But the legislature passed major bills on renewable energy, school finance and prescription drugs.

Legislators passed around 20 bills dealing with new energy sources, the Denver Post reports. One bill that got a lot of press requires large utility companies to get 20 percent of their energy from renewable sources. That's double the current requirement and this proposal had bipartisan support.

Poll Results: Full-time Legislators

Based on Nicole Moore's post, "Conflicts of Interest are Part of the Process," we posed the question, "Should state legislators be full-time (with a full-time salary to match) in order to avoid conflicts of interest?"  This question was up for about a week and drew relatively few responses.  The ones that we received were nearly evenly divided: 11 respondents favored having full-time legislators and 10 were opposed.

Blogging in the Legislative World

by Karl Kurtz

I am participating in a panel session at NCSL's Spring Forum next week on "Basics of Blogging: How to Blog with the Best of Them."  One of my fellow panelists, Delegate Kris Amundson of Virginia, has posted an item about the session on her blog, 7 West, which she writes with her fellow representative from their two-member district, Del. Bob Brink.  Her post asks their readers to comment on what makes a good blog by elected officials and whether there is a need for a bloggers' code of conduct.

I thought I would do the same and ask our readers to comment here in The Thicket or on 7 West.  If you don't want to comment publicly, feel free to send us an email message.  Please also be sure to vote in our poll at the top of the right column.  We will use your feedback in the panel session.

On the subject of civility in blogging (which has not been a problem in The Thicket, just as it has not with 7 West), two interesting items arrived on my desk today on this subject.  One is the front page story in today's New York Times,  "A Call for Manners in the World of Nasty Blogs,"  which discusses a number of recently proposed standards for blogging.  I'm all in favor of standards, as long as they are flexible, but I would be interested to hear your thoughts.

The other is a comment that we received about blogs from a partisan staffer who regrets that she will be unable to attend the session at the Spring Forum but wants to express her concerns about the problems that bloggers create for elected officials through misinformation on policy issues and incivility in their writing.  Her perspective is from that of a "receiver" of blogs rather than as a writer.  Excerpts from her commentary are included below the jump.

Conflicts of Interests Are Part of the Process

by Nicole Moore

Conflicts between state legislators' personal interests and public position have been in the news a lot lately. But are they really "news?"

In three New England states--Rhode Island, New Jersey and Connecticut--lawmakers are considering proposals to make their legislature full time in an effort to avoid conflicts of interests. And an Associated Press story that ran in the Washington Post in late March highlighted lawmakers who had to decide whether to abstain from voting because of conflicts.

As NCSL's Center for Ethics in Government Director Peggy Kerns told several of the reporters who wrote these stories, conflicts of interests are a natural part of life as a public official, especially if you're a citizen legislator. Most of the nation's state legislatures are filled with regular people who hold other jobs. Most states don't want professional politicians, and so legislative chambers have built-in mechanisms for lawmakers to either disclose their competing interests or abstain from voting.

Dealing with Conflicts of Interest

by Karl Kurtz

There was a good AP story this past weekend about conflicts of interest inherent in the role of a citizen lawmaker.  The story has interesting anecdotes from Idaho, North Carolina, Virginia, Tennessee and Washington.  It quotes Peggy Kerns, director of NCSL's Center for Ethics in Government. Unfortunately, though, it doesn't provide links to the web page that the Center has created on conflict of interest, especially the page entitled "To Vote or Not to Vote: Balancing Personal and Public Interests in the Legislature."   This page contains a good explanation of the issue and links to 50-state charts on conflict of interest provisions.

Ethics Initiative Gone Awry?

by Karl Kurtz

In last November's elections, Colorado voters approved an ethics measure, Amendment 41 to the State Constitution, by a large margin, but now many people are having second thoughts.  The measure prohibits state or local officials from accepting anything of value from registered lobbyists or gifts of over $50 from any "person." 

If you read  this constitutional provision literally, as Colorado's Attorney General John Suthers has done, it means that children of public school teachers cannot accept many college scholarships and university professors cannot accept a Nobel Prize.

In a story, "Poll: Ethics Law Goes to Far," the Boulder Daily Camera last week reported that a poll released by Coloradans for Sensible Ethics, a group that supports the ethics law but wants legislative action to clarify it, shows that 86 percent of respondents agree that "when they passed Amendment 41, voters were mostly focused on stopping lobbyists from buying political favors from politicians, and did not intend for this law to negatively affect the lives of everyday government workers and their families."  That's more than a little bit of a leading question containing a lot of assumptions, but it does show that many people are unhappy with the constitutional measure that they approved.

The result is an odd set of circumstances in which the proponents of Amendment 41 appear to be embarrassed by the letter of the law and want the legislature to pass corrective legislation, but many in the legislature who think that the amendment went way too far and wish it would go away are content to let the advocates stew in their own juices, at least for a while.

Because Amendment 41 is a constitutional provision, there is considerable doubt as to whether lawmakers could pass clarifying legislation.  Yesterday, House Speaker Andrew Romanoff announced that he would seek an advisory opinion from the Colorado Supreme Court as to the legality of legislative action.

Today a private foundation that gives scholarships to Colorado students has filed suit against the amendment, saying that up to 72 of the finalists for their scholarships this year might be barred by Amendment 41 from accepting their funds.

New Podcast: Ethics Reform Is on States' Agendas

by Nicole Moore

Congress isn't the only legislature looking at ethics reform this session.  States will be examining their ethics laws too, predicts Director of NCSL's Center for Ethics in Government Peggy Kerns. She's seen movement on this issue already. Governors in Ohio, Florida and New York have ethics reform on their agendas, and many state legislatures are considering new laws as well.

Kerns expects gift and lobbying restrictions to be big this year. Tennessee, Florida and Colorado are three states that adjusted such laws since last year.

Hear about ethics reform in the states (8:33) on the latest edition of The Buzz @ State Legislatures, NCSL's podcast.

States Praised for Ethics Laws

by Gene Rose

While we like to trumpet state innovation and state legislatures' ability to move on issues when Congress is gridlocked, we also like it when the news media picks up on it. In a front page New York Times story yesterday, reporter David D. Kirkpatrick discusses the strength of state legislative ethics laws as compared with those of Congress. He quotes former state legislator and NCSL president John Hurson.

NCSL's Center for Ethics in Government keeps track of state ethics laws and recently put together a package of training materials that are available to state legislatures.

Crossing the Line

by Brian Weberg

On Wednesday, July 12, a former legislative staffer in Illinois was sentenced to one year and one day in prison for crossing the sometimes fuzzy line between legislative work and performing campaign activities on state time.

Similar stories have played out in a few other states over the past decade or so. It reminds us of the broad scope of responsibility that every legislative employee has to the public trust and to the institution. It also reminds us of the serious side of legislative work and of the consequences that can befall those who lose perspective on these responsibilities, if even for a moment in their public service careers. It seems that the risk of these violations could be on the rise as party competition for state legislatures reaches new heights each election. The battle for control over redistricting and for the upper hand in an increasingly polarized policy debate only exacerbate the temptation to use public resources for purely political ends.

Marking the line that divides legitimate legislative work and illegitimate campaigning on the public's time can be more like art than science. The rules can be vague, and good people often see the positioning of that line very differently. But ultimately the decision about what is right or wrong is a personal choice and one that should not be ignored or taken lightly.

FBI Targets Government Corruption

by Gene Rose

FBI Director Robert Mueller on Thursday announced his agency has launched a Web site where the public can report government corruption. In addition to high profile cases involving former members of Congress and the former governor of Illinois, the Associated Press reported that "more than 1,000 corrupt government employees have been convicted in the last two years as a result of FBI investigations, many of which began with tips."

No Free Lunch or No Lunch at All?

by Karl Kurtz

In a special session in December last year, the Florida Legislature passed a new ethics requirement that bans lobbyists and their clients from making “any expenditure” on state legislators.  Now that the ban has been enacted, legislators are trying to figure out what it means.  Legislative lawyers are fielding questions like whether legislators have to pay for their own meals at a district Chamber of Commerce luncheon where they are speaking or whether state agencies that employ lobbyists can provide free food or transportation to legislators.  For a list of some intriguing ethical dilemmas (but no answers) under this rule, read the St. Petersburg Times.

John Phelps, the Clerk of the Florida House, reports a hypothetical question about the law that is worthy of a Supreme Court nominee’s confirmation hearing. It was asked by Rep. Bill Galvano during the floor debate on the bill: "If you are a member of this body and you are also a member of a law firm that lobbies, can you buy your own dinner?”

To find out more about states' lobbying regulations, check out NCSL's Center for Ethics in Government.