Dear friends of ethics reform,
Utahns for Ethical Government today announced its support for the Count My Vote (CMV) Initiative Petition.
Knowing from experience how difficult it is to reach the required 102,000 signatures distributed across 26 of Utah’s 29 state Senate Districts, we encourage all those who supported our UEG ethics initiative to sign the Count My Vote initiative petition. For information on where to sign, go to the CMV website at www.countmyvoteutah.org
The purpose of the CMV Initiative is to encourage better participation by all registered voters in the selection of candidates to run for state and federal office. The direct primary system established in the CMV Initiative will accomplish this far better than the current caucus & party convention system that is outdated and exclusionary. Through Count My Vote, Utah’s citizens will have a greater voice in the political process.
Currently, our governors, attorneys general, county commissioners, members of Congress, U.S. Senators, state legislators—all our elected officials—are not really selected by most Utahns in November elections. That conventional view is wrong, according to David Irvine, UEG co-counsel. As Irvine puts it, “The real election—the one that currently counts—is whatever day in March the party insiders gather at places for 2 or 3 hours of caucuses, i.e., neighbor-inflicted litmus tests, to see if someone is sufficiently “right-thinking” to be selected as a convention delegate in a problematic caucus voting process.” He cautions: “To be perfectly blunt, the only Utahns our elected officials deeply, whole-heartedly need to care about are the relative handful of Utah voters who hold the literal power of life or death over political careers—the fewer than 1% of the voters who know enough about politics to become delegates at the archaic system of neighborhood caucuses and nominating conventions.”
Kim Burningham, UEG chair emeritus, states: “Why place the future of our state into the hands of fewer than 1% of the voters who have their own agendas? We should instead give the power of candidate nomination to all who want to vote in the Democratic and Republican primaries, respectively. Involving more voters will help to ensure that candidates attune their campaigns to a much broader voter base—one that puts voters as a whole back in charge of public policy.” Continuing, Kim adds: “We’ll get better policy decisions when candidates have to appeal to the broad majority, not a tiny slice. If Count My Vote passes, issues that the public cares about, such as ethics reform, air quality, and education should have a much better chance of being addressed in a positive way by our legislature and other elected officials.”
UEG also observes that other reforms are needed to encourage a more balanced political process and a more competitive two-party system that will help to keep elected officials honest and responsive to the public at large. An impartial, nonpartisan process for redistricting to reduce gerrymandering is at the top of our list. Examples of other reforms that are needed to enhance voter participation are statewide ethics reforms, a truly independent and empowered Ethics Commission, and consideration of online voting and election day registration. Count My Vote is an important beginning step in improving Utah’s electoral processes. Please give serious consideration to their initiative.
Utahns for Ethical Government Executive Committee
On Monday, March 7th, UEG urged Governor Herbert to veto HB 477. On Tuesday, the Legislature recalled the bill and changed the effective date of the legislation to July 1, 2011, supposedly to allow time for public input and to allow changes to the bill in a June special session. The public must make sure that the changes are not superficial and that the bill’s bad substance is defeated. Here is our position statement:
HB 477, amendments to GRAMA (the Government Records Access and Management Act), is a bill that severely restricts public access to legislative information. For a Legislature that keeps saying that disclosure and transparency are enough to ensure good ethics, HB 477 is the height of hypocrisy.
In short, this bill is a severe restriction on the public’s right to know and reduces the concept of freedom of information to a mere shell of its former self. It deserves a quick veto.
Utahns for Ethical Government (UEG) is tracking several bills introduced at the 2011 session of the Legislature, specifically those that relate to legislative ethics. House Bills (HB) and House Joint Resolution (HJR) measures are listed below, with the sponsoring representative’s name listed beside the bill. Each bill can be accessed on the legislative website through http://le.utah.gov/session/2011/bills.htm. UEG takes a position on the following bills:
UEG supports. If it passes, legislators-elect (as certified by the Lieutenant Governor) would be subject to the Legislature’s Official Code of Conduct. At the moment, only sitting legislators are subject to the Code.
UEG supports. This current revision extends campaign and financial reporting requirements to county political parties.
UEG supports. This measure prohibits campaign contributions during special sessions that occur after July 1st of an election year. The measure closes a loophole that currently allows such contributions during special sessions held after that date.
UEG supported. This measure established campaign contribution limits on corporations, PACs, and individuals. The measure followed the limits recommended by the Governor’s Commission on Strengthening Utah’s Democracy but was defeated in the House Ethics Committee. We continue to support the need for campaign contribution limits and expect to support efforts in subsequent legislative sessions to enact limits.
UEG supports. If it passes, this measure would add to the Joint Legislative Rules a section that enumerates redistricting principles to guide the Legislature when it divides the state into congressional, legislative, and other districts. Among other things, the measure requires an open and transparent process, with contiguous, reasonably compact districts having substantial equality of population. It urges “to the degree reasonably achievable” keeping municipalities and townships intact, respecting existing city and county boundaries, maintaining communities of common interest, and promoting meaningful competition between political parties. It is an excellent statement of principles.
UEG has reservations. This measure proposes a couple of changes to the Legislative Code of Official Conduct. UEG has two primary concerns with the 3rd substitute:
Including statements in the Code that address these provisions would give credence to the Legislature’s claims that these proposed measures addressed ethical issues. Failure to include them does the opposite.
UEG does not support. This measure proposes a constitutional amendment prohibiting a “registered lobbyist” from being a member of the Legislature. Although we too believe that a legislator should not be a paid lobbyist, we believe this prohibition belongs in statute alongside other restrictions on legislators, not in the Utah Constitution. Furthermore, the term “registered lobbyist” is a term not found in the Utah Code and putting it in the Constitution could well have unintended consequences. For instance, what if a lobbyist, defined by statute basically as one who is employed or paid to lobby, fails to “register”?
Utahns for Ethical Government is not opposing the proposed constitutional amendment (Amendment D on the November ballot, formerly referred to as House Joint Resolution 15) that enshrines an independent legislative ethics commission in the Utah State Constitution. The plain language of the proposed amendment merely provides, in broad outline, that such a commission shall be constitutionally required, leaving to future legislative enactments the details respecting the make-up and operation of the commission, as well as the ethical rules which the commission would apply to legislative conduct. This plain language is entirely consistent with UEG’s proposed initiative and, in fact, that initiative easily could be just such a future legislative enactment, the “legislative oil” which would fill this “constitutional vessel.”
Some have accused the legislative leadership of having an ulterior motive in proposing the amendment, a motive to use the amendment to block enactments respecting legislative ethics through a people’s initiative. The proposed amendment may have been born as a political gimmick to forestall signatures on UEG’s petition. Or it might be viewed as superfluous window-dressing, since it does no more or less than can be achieved by legislative rule-making. But the amendment’s plain language belies an ulterior motive permanently to debar ethics legislation through the initiative process and the legislature as a whole voted to approve the amendment based upon this plain language. In any case, the legislature’s collective intent in passing the proposed Amendment D can’t be defined by whatever motives may be obscured or hidden in the minds of a few members of that body. The public also will vote for or against the amendment in light of this plain meaning, and, as noted above, that plain meaning is compatible with UEG’s initiative.
Utahns for Ethical Government applauds Mayor Corroon’s invitation for the gubernatorial candidates to voluntarily limit their campaign contributions to donations of not more than $10,000 and return to donors the amounts any contributor has given in excess of that. We also applaud Governor Herbert’s willingness to at least consider a joint agreement to that effect and not to rule it out.
“This is an opportunity for all of the candidates to take a very positive step that most Utah voters have long supported, and we believe it will show real leadership on each candidate’s part,” said Dixie Huefner, speaking for UEG’s Executive Committee. “While a $10,000 limit is higher than the ceiling UEG has proposed, it’s a major step, because Utah is one of only four states with no campaign contribution limits at all.”
David Irvine, one of the initiative petition’s drafters, said, “Obviously, this can only work if all the candidates agree, but it can be a huge win for Utah, for the candidates who’ll together show real leadership by a joint agreement, and it will send a powerful signal to the Legislature that it’s time to act on moving Utah out of the D- category for ethics laws.”
Kim Burningham, UEG chair, noted that, contrary to the Governor’s concern that contribution caps might violate free speech, “a voluntary cap is just that—voluntary on the part of the candidates, no different from a fair campaign pledge. Furthermore, the U.S. Supreme Court continues to specifically uphold the principle of campaign contribution limits because they do not impinge on free speech. Instead, they help keep elections honest.”
Today Utahns for Ethical Government is releasing to the media a copy of the memorandum it sent to the Joint Senate and House Interim Ethics Committee. The memo was sent in anticipation of the Ethics Committee’s June 23rd meeting, at which the Committee will be addressing how to strengthen and improve its current code of conduct. UEG Chair Kim Burningham has been invited to present UEG’s suggestions in person at the June 23rd meeting. He will be accompanied by UEG Executive Committee member and drafting attorney David Irvine.
Said Burningham, “Many portions of the current code are widely recognized as so vague as to be unenforceable. If the Legislative Ethics Committee is intent on improving the code, we believe that it should take our suggestions seriously.” Added Irvine, “Adoption of UEG recommendations would help to build public trust in our Legislature, assuming, of course, that the code is then rigorously enforced and that appropriate and skilled training of the Legislature is conducted.”
“UEG is pleased that the Legislative Ethics Committee is interested in improving the code of conduct and we are happy to contribute our suggestions to the Committee,” stated Dixie Huefner, UEG Communications Chair. “We want to be supportive of their effort while also continuing to move forward with our own ethics reform initiative and our August 12th signature gathering deadline.”
The memorandum follows.
TO: Joint Senate and House Interim Ethics Committee
FROM: Utahns for Ethical Government
DATE: June 4, 2010
RE: Suggestions for Revisions to the Legislative Code of Official Conduct
In response to Senator Urquhart’s invitation for public comment on revisions to the current code of conduct, we offer a number of suggestions that we believe deserve consideration. We recognize the difficulty of capturing the appropriate balance between broad principles and explicit prohibitions and hope you will work diligently to do so. We feel strongly that the current Code is inadequate and recall that the House Ethics Committee itself found some of the provisions of that Code impossible of enforcement.
As a preliminary matter, UEG believes that caps on campaign contributions and certain restrictions on solicitation of contributions are needed and would go a long way toward assuring the public that special interest money is not dictating legislative outcomes. We have assumed, however, that the Interim Ethics Committee may believe that these issues belong in the Government Operations Committee, where campaign contributions were taken up during the last legislative session. Therefore, we have not made suggestions about campaign caps in this memorandum although we are not dropping our interest in such matters. We continue to see campaign finance reform as directly relevant to the ethical operation of the Utah Legislature.
The wording below, relating to changes to the current Code of Official Conduct, may be capable of refinement by legislative counsel, but we hope that the intent is clear and reasonably specific.
A few of the terms (e.g., family members, personal advantage, personal benefit, paid lobbyist, person, control person) may require subsequent definitions for clarity.
- No legislator shall engage in employment as a paid lobbyist while serving as a legislator or for two years after leaving office.Such prohibitions would have the salutary effect of reducing the risk of engaging in the kind of employment that would “destroy or impair” independence of judgment of sitting legislators. It specifies the kind of activity that is most likely to be perceived as compromising one’s ability to exercise independent judgment. It is narrower than the current code provision prohibiting employment or activity that would impair independent judgment, yet also more explicit. It recognizes the reality that part-time legislators naturally bring employment experience and knowledge that make totally independent judgment impractical and unrealistic.
- No legislator shall accept employment as a consultant, advisor, attorney, or employee of a paid lobbyist.Same rationale as above.
- A legislator shall not use confidential information acquired as a result of legislative status to gain a personal advantage for the legislator or the legislator’s family members, nor shall a legislator use the legislator’s office for such personal advantage.
- A legislator shall not accept a gift, as defined in [code provision]* from a paid lobbyist.
- A legislator shall not accept any campaign contribution that is given, explicitly or implicitly, with the expectation of a return governmental favor by the legislator to the contributor.
- Legislators shall not be control persons in a corporation (including labor unions and nonprofits) while serving as legislators unless legislative status was not a contributing factor to the appointment and does not serve to provide the legislator with any personal advantage or profit.
- A legislator shall not threaten or exact retribution for a person’s failure to comply with an inappropriate request or demand by the legislator that exceeds the legislator’s legitimate scope of legislative authority.
- A legislator is expected to obey the civil and criminal laws of the state and shall not engage in any illegal conduct that reflects negatively upon the legislator’s fitness to serve as a representative of the people.This would obviously require exercise of judgment by those given responsibility to judge the conduct. A parking ticket would probably not reflect upon a legislator’s fitness to serve, while multiple, unpaid tickets over a long period of time might so reflect, as evidence of disrespect for the law, unless there were extenuating circumstances.
- A legislator shall not attempt to discourage, by any means, the investigation or prosecution of any civil or criminal matter within the jurisdiction of another branch or level of government.
- A legislator shall not use government facilities or employees in furtherance of a purely personal interest.
- A legislator shall not attempt to unduly influence documents or opinions, including analyses and audits, prepared by public bodies and public officials in conjunction with any issue that is or proposed to be the subject of statewide initiative or referendum.
- A legislator shall not suggest that a lobbyist further the personal interest of the legislator or the legislator’s family members, by, for instance, suggesting that the lobbyist hire any of those persons.
- Legislators shall disclose any potential or actual conflict of interest on any legislation or legislative matter as provided in [code provision]*.
- Legislators shall not use their campaign money for personal use, as provided in [code provision]*.
- Legislators shall not give funds from their own campaign fund to other legislators, public officials, candidates for public office, political parties, or charities but shall keep the money for their own campaigns, as intended by the contributors.
- Legislators may seek an advance opinion from the Independent Ethics Commission with respect to any conduct that might be considered unethical. A written opinion from the Commission, when issued in advance of the conduct and which determines that the conduct is not a violation of the Code, would provide immunity from a complaint lodged against the legislator with respect to the specific facts addressed in the written opinion.
- A legislator who violates the Legislative Code of Conduct shall be guilty of an ethical violation and subject to procedures provided for in legislation or legislative rule and remedies as determined by the Legislature.We think it is important to state explicitly in the Code that Code violations are ethical violations. The Legislature’s current code also refers to the criminal code section which provides that a violation of the Code constitutes a class B misdemeanor.
We support continuation of the substance of provisions requiring legislators to follow the procurement code process, as specified currently in (j), (k), and (3)(a).
In this memo we have not attempted to suggest improvements to the related statutes enacted during the 2010 session—statutes regarding conflicts of interest and disclosure of assets, personal use of campaign contributions, and restrictions on lobbyist gifts. We do not think that these separate statutes are adequate as currently written. We assumed, however, that specific content related to these matters could be omitted from the Code of Conduct as long as the appropriate code citations are incorporated in the Code of Conduct. We further assumed that the Interim Ethics Committee would view the content of these statutes as outside the immediate scope of its concerns.
Thank you for the invitation to provide input. We would be happy to meet with members of the Committee and its staff to discuss and clarify any of the above recommendations. In a future memo, we would also be happy to offer our analysis of any relevant statutes, at your request.
* [code provision] refers to statutes passed during the 2010 session of the legislature relating to personal use of campaign contributions, disclosure of assets, and restraints on gifts from lobbyists, as the case may be.