Tuesday, June 14, 2011

Conflict of interest laws in Utah, Nevada, and the Supreme Court

One of today’s top news stories is the unanimous U.S. Supreme Court decision upholding Nevada’s conflict of interest law in the face of a First Amendment challenge. Here, for example, is the excellent write-up in the New York Times:
Even while the federal courts are allowing corporations to shelter their political contributions under the First Amendment, it’s good to know that elected officials can’t similarly shelter their conflicts of interest.

The general principle here is simple enough: An elected representative’s vote on a particular piece of legislation is not protected speech, because casting such a vote is a function of the representative’s office, rather than a personal right.

The particulars of the Nevada case are also interesting. The offending official was a city council member in Sparks, a city just slightly bigger than Ogden. His offense was to vote to approve a casino project that his campaign manager was closely involved with. (Whether that association was close enough to create a conflict of interest is a tricky question that the Supreme Court didn’t try to answer.)

Could a similar conflict of interest arise in Ogden? Obviously the proposed development wouldn’t be a casino, but our mayor and city council exert tremendous control over local real estate developments. It’s easy to imagine that some of these officials, or their family members or close associates, might have a financial interest in a project seeking city approval. But how would we know? Utah’s disclosure requirements for local officials are extremely weak. Also, whereas Nevada has a state Commission on Ethics that investigates and punishes ethics violations, Utah law trusts the mayor to oversee all such investigations within a city—even when it’s the mayor who commits the violation!

The Ogden Ethics Project platform would address these shortcomings in the following ways:
  • Require elected officials and appropriate employees to disclose all ownership of, or financial interest in, real property in Weber County, as well as any financial interest in companies doing business in Weber County.
  • Establish a process whereby the city council can investigate allegations of conflict of interest involving the mayor.
  • Post all conflict of interest disclosure statements on the city’s web site.
Beyond these basic measures, we hope that someday the Utah Legislature will create a state ethics commission, raising Utah’s ethical standards at least to the level of Nevada’s.

Tuesday, June 7, 2011

Gondola records lawsuit shows policy reforms needed

The Ogden Sierra Club recently announced the final settlement of its four-year legal battle with the city over access to a variety of records related to the gondola proposal. I (Dan Schroeder) was the Club’s lead volunteer in this lawsuit, and this dispute was one of many incidents that motivated the formation of the Ogden Ethics Project.

The Ogden Ethics Project is neutral on the gondola idea but we are strong advocates of open government. In this particular incident, the Ogden City Attorney’s office demonstrated a troubling obsession with secrecy, attempting to stretch Utah’s open records law to exempt far too many public records from disclosure. This obsession even extended to several records that contained no significant information at all. Still more troubling was the decision of the volunteer Records Review Board to uphold the city attorney’s classification of every single record—more than 40 in total.

Two of the planks in the Ogden Ethics Project platform would help resolve these kinds of disputes far more quickly, with far less expense:
  • Broaden the representation on the city’s Records Review Board to include citizen and media advocates—not just government insiders.
  • Allow denied GRAMA requests to be appealed to the State Records Committee.
If either of these reforms had been in place four years ago, it’s unlikely that this case ever would have gone to court.

Further reforms may also be possible. Utah may create a training program for government records officers, and Ogden could then require its staff and/or Records Review Board members to go through such a program. The city could also adopt policies to encourage its attorneys, when reviewing public records requests, to interpret exemptions narrowly and to represent the interests of the city as a whole rather than just those of one particular branch of government.