by Corey Toney
A central aspect of American democracy is trust. People often wonder if it is ok to trust that the government is doing a good job, and working in the best interests of the people. Since the Watergate Scandal, trust in all Federal, State, and Local Governments has decreased. The Watergate Scandal did however, increase the public’s interest in ethical public service. There was a cry for transparency that we can still hear today. The result has been what some would call, an ethics revolution. There are many ways that we judge the acts of legislatures. The ways that we judge them are largely influenced by our beliefs. The degree to which we trust public officials largely depend on the degree of, informed consent, limited government, delegation, the variety of democratic regimes, and range of ethics of representation.
Trust and Government
Informed consent is the idea that we have the right to vote, and that we trust the results of the election. Essentially we understand that we all have different opinions and we aren’t going to go to war just because one group voted differently than another. The variety of democratic regimes reflects the level of accepted argument and speech. Since there are a lot of political parties in this country, and they are all allowed to speak in the proper time, place, and manner, people accept that the US Government observes an individual’s right to voice their political opinion without lawful repercussions. Delegation is the most difficult of these values to analyze. The question arises; should an elected official act according to what the public wants, or should they act in accordance to what they believe is for the greatest public good? The question has been debated for decades, and will likely be debated about for decades to come.
The range of ethics of representation is the idea that not all representatives face the same ethical dilemmas or choices. In other words, the job may be significantly easier in some districts rather than others, and even for different people in the same district. The focus of this work will be on the range of ethics of representation because in the practice of politics, people run into conflicts of interest that give them an unfair opportunity that would not otherwise be available if not by the virtue of the position. Oregon ethics laws define conflict of interest as, “any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private [financial] benefit or detriment of the person or the person’s relative or any business with which the person or a relative of the person is associated (ORS 244, 2013).
In the wake of the Watergate Scandal, the trust in the government was lower than it had ever been before. The country was just coming out of a war that many people had opposed and the man in the highest position of government in the US had betrayed their confidence further. Jimmy Carter felt like he had to do something to address this rapid decline. In 1979, he helped to pass the Ethics in Government Act into law. The law required that a financial disclosure and employment history of officials elected, or appointed to certain offices, be submitted to public record. According to Preston et al., public officials should, “avoid conduct which would create the appearance of a loss of impartiality,” because it would result in the loss of public confidence (Preston et al, 1999.). The scandal made clear to the public that some officials were using the public office for the sake of personal gain, whether that was for power or financial gains.
One of the public’s primary concerns regarding public office is conflict of interest. In practice, it can be surprisingly difficult to be able to tell what a conflict of interest is. Just because an individual doesn’t have a financial stake it doesn’t mean that there is no power at stake. For example, if a candidate receives money from a business or corporation in exchange for a favorable vote, it is clearly a conflict of interest. However, if the same corporation gives the same sum of money, but it does not influence the officials vote because the vote was already favorable to the corporation, we might argue that there is not a conflict of interest there. It is difficult to determine whether the vote follows the money, or the money is with the vote. In both situations however, we might be able to argue that there is at least an appearance of a conflict of interest. Oregon doesn’t allow for legislators to accept campaign donations during the legislative session. This rule does not however, address the situation of promising future donations for a favorable vote behind closed doors.
The Appearance Standard
Thompson, has developed what has come to be known as The Appearance Standard. The Appearance standard dictates that, “appearing to do wrong while doing right is really doing wrong (Thompson from Preston et al, 1999.).” Why might this be the case? The answer is public opinion. It is difficult for most people to judge what is happening in a process unless they are able to see all of it. In most, if not all cases, even the most scrupulous research still only gives us an approximation of the truth of the matter. When an official is doing the right thing, and appearing to do the wrong thing, people will think that they are doing the wrong thing. Not only will people believe that these officials are doing the wrong thing, they might think that all officials are doing the wrong thing when in fact, they are actually doing the right thing. We can only make judgements based on what we can observe, and appearing to do wrong makes it difficult for the public to evaluate the motives of all public officials. Giving the appearance of one thing while doing another is deception because it undermines the public’s ability to judge it for what it is. It erodes public trust and faith in the system.
Many officials attempt to do the right thing, and show that they are doing the right thing, but in recent years, politicians, legislative aides, and lobbyist have claimed that it has been increasingly difficult to do so. The reason for this struggle is the media. The media is the primary medium in which the public receives information about government and government officials. Generally, what people see and hear in the media shapes their opinions about government and the world.
Appearance and the Media
The media has assumed the role of being the government watchdog, as many argue that it should be, but according to the research of Preston et al. the media has become more like an attack dog rather than a watchdog (Preston et al, 1999.). They write, “The Josephson Institutes Surveys of Legislators and Legislative Staff found considerable agreement as to how the press had changed: 88% saw it as more aggressive; 84% as more intrusive; 89% as more negative; 87% as more cynical; 64% as more prosecutorial; 68% as more biased; and 61 % as more unfair (Preston et al, 1999.).” In today’s media, there are scandals everywhere. The Medias economic incentives influence outlets to produce content that will get them higher ratings. The information is quite often sensationalized, and one sided. Many people have come to consider some large TV news outlets as “infotainment.”
Public opinion and the confidence in Oregon government, specifically the legislature, has been declining since the 60s (Clucas, 2005.) Yet, according to Preston et al. there is no persuasive evidence to support the idea that corruption has increased over the years (Preston et al, 1999.). Despite this fact, we see that the media attempts to make it appear that officials vote more favorably toward those who contribute more money, when in many cases, the vote would have been the same without the money. Essentially, the media attempts to give the appearance of a conflict of interest scandal out of any considerable donation.
Oregon’s Ethical Reform
At an attempt to reconcile the conflicts, whether real or fabricated, Oregon has created regulations to guide the behavior of officials to avoid the appearance of wrongdoing. In 1974, Oregon voters approved a measure 14 to create the Oregon Government Ethics Commission (OGEC, n.d.). This measure was passed in the wake of the Watergate Scandal when people were demanding trust and transparency from the legislature. When the commission was established it was given jurisdiction to implement and enforce laws to regulate the conduct of public officials and lobbyists (OGEC, 2010). In 2007 the Oregon Legislature passed the Oregon Ethics Reform Act (OERA), revising Oregon’s ethics laws (OGEC, n.d.) and again, in 2009 the Legislature passed legislation to further refine OERA (OGEC, n.d.).
The Oregon Ethics commission is composed of seven members. One of the members is recommended by the Senate Democrats, one by the Senate Republicans, one by the House Democrats, one by the House Republicans, and three by the Governor (OGEC, 2010). The Governor has the power to appoint whomever he chooses, however each of his selections must be confirmed by the Senate as well (OGEC, 2010). There is also the stipulation that, “No more than four commissioners with the same political party affiliation may be appointed to the commission to serve at the same time (OGEC, 2010).” Commissioners are to serve only one four year term, however there is an exception if an appointee finishes someone else’s term (OGEC, 2010). They’re allowed to finish the term of the relieved party and then serve the four year term (OGEC, 2010). The members of the commission choose a chairperson and vice chairperson every year (OGEC, 2010). The Commission is administered by and executive director selected by the commission (OGEC, 2010). The job of the Commission staff is to, “provide administration, training, guidance, issue written opinions, and conduct investigations when complaints are filed with the Commission (OGEC, 2010).” In other words, they are a complaint driven organization. The Oregon Ethics Commission provides officials with resources such as a hotline and pamphlets, to help guide thinking and avoid unlawful or otherwise uncharacteristic behavior.
According to Representative Barker’s and Representative Greenlick’s account, the ethics reforms in 2009 came out of issues regarding gifts to legislators (Greenlick and Barker, 2015). There were some legislators that were accepting very expensive gifts like trips to Hawaii from lobbyists (Greenlick, 2015). Not only were some receiving gifts like these, but some legislators were demanding them (Barker, 2015). First, by accepting the gifts, people perceived that these legislators were being influenced by money, which according to the appearance standard, will result in the public believing that most legislators are being influenced by money. Second, by demanding the gifts, some lobbyists began to feel like it was a shake down, and would be under significant pressure to satisfy the legislators. The end product of the ethics reforms in 2009 included limiting the amount of gifts that legislators can receive to no more than $50.
Oregon’s Ethics Laws
There are five areas that are covered in Oregon’s ethics laws. The areas under the jurisdiction of the OGEC are the use of the office, gifts, nepotism, and employment of public officials. However, officials are not under the jurisdiction of the Oregon Ethics Commission when it comes to failing to keep promises, poor judgement while managing public funds, or “using deception or misrepresenting information or events (OGEC, 2010).” Some may argue that the ethics commission should cover these areas; however we are all human. All of things mentioned that the OGEC does not cover, allow for legislators to make mistakes and have bad judgement. Promises made by legislators that aren’t kept could be frustrating for the public, but it could be a broken dream for a legislator. To make things otherwise would discourage good, motivated people from running for office.
The use of office section covers the behavior of an official during his use of the office resources. ORS 244.040 “prohibits every public official from using or attempting to use the position held as a public official to obtain a financial benefit, if the opportunity for the financial benefit would not otherwise be available but for the position held by the public official (Government Ethics Act, 2013).” The law includes the prohibition of, “attempting to use confidential information [acquired in office] for personal gain,” and prohibits officials who own businesses’ from being paid spokesman for their type of business (OGEC, 2010). To clarify, an Oregon official is not allowed to conduct private business using the public’s resources. The section about being a paid spokesman means that the legislator cannot be a lobbyist at the same time.
This rule is to create a fair environment for the public. We should use public resources for personal gain, because that is what they are for. However, an official using these particular resources for business would be a misuse because that equipment is not there for use by the public; it is to be used for the public. If an official was to check or respond to e-mails regarding a business contract, they would be subject to a fine. Any gains to be had from the office must be part of an official compensation package that is approved by the public formally (Government Ethics Act, 2013).
To address nepotism, otherwise known as making politics an exclusive family business, officials are prohibited from certain actions. Public officials are not allowed to, appoint, employ, promote, discharge, fire, interview or debate any of the mentioned actions with family members (OGEC, 2010). Family members include immediate family and the immediate family of a spouse. Legislators are only allowed to provide recommendations for family members to hold public offices. The exceptions to this rule are, if the family member is an unpaid volunteer, or if the family member is being hired as a legislative staffer.
Receiving gifts from people is likely to be one of the most mentally difficult tasks for officials. It is so difficult in fact, that many officials refuse gifts altogether just to save themselves the headache. The first thing that an official must consider when accepting a gift is determine whether or not the giver has legislative or administrative intent. Legislative or administrative intent is when someone in the relationship has something to gain. For instance, a gift from your boss is ok to take without much thought. If the relationship is flipped and you are now the boss, the gift must be taken with careful consideration because your employee may have administrative intent. If the person giving the gift has nothing to gain or lose from a vote, then a legislator can receive any amount of gifts from this person. If the person does have a legislative or administrative interest in the legislator, then they can give no more than $50 in gifts. This is a regulation to prevent a legislator from feeling as if they have to, “pay it back.”
A government official is allowed to have a job outside of the government office. In fact, as a citizen legislature, Oregon legislators generally do have jobs outside of the capital. So long as the official is not using the public’s resources for the use of outside employment, officials have nothing to worry about regarding their current or past employment. There are restrictions on employment after holding office. The law states, “For two years after a public official ceases holding or being employed in a position as a public official, that public official may not have a direct beneficial financial interest in a public contract when one of the parties to the contract is the public official’s former public body if the contract was authorized by [the public official] (Government Ethics Act, 2013).” This prevents a public official from being employed, by a construction company after the official awarded a contract to them. If the official were to accept the employment, it would look like they did a favor for the company and was employed for their help in the acquisition of the contract. A legislator also, “may not become a compensated lobbyist until adjournment of the next regularly scheduled session of the Legislative Assembly (OGEC, 2010).” Legislators meet with lobbyists on a daily basis and the law addresses the appearance of legislators exchanging favors with lobbyists. Furthermore, the law prevents officials from being employed in an area where they created jobs. For instance, if a Legislator created a new state agency and became the new agency head, they would be in violation of the law.
All of the things that I have mentioned revolve around a central idea: conflict of interest. Conflict of interest is broken down into two categories by the OGEC. The categories of conflict of interest are situations that could, and situations that would create a conflict of interest. Public officials are to, “publicly disclose once during each meeting convened by the governing body they serve (OGEC, 2010),” when met with a conflict of interest or potential conflict of interest. Officials must also re-state the conflict or potential conflict of interest at every meeting regarding the topic of discussion. Legislators are not however, required to abstain from voting, or from discussing any issues if they have a conflict of interest. In some other states, the rule is different. In Pennsylvania for instance, a legislator must abstain from voting when they have a conflict of interest unless so many people are conflicted that it would prevent the Legislature from taking action (State Ethics Commission, 2006). If the idea is to retain the public’s trust to the maximum degree, they Pennsylvanian laws regarding conflict of interest do a better job. In Oregon, it is easy for an individual to take advantage of their position. According to the appearance standard, if Oregon were to adopt rules like Pennsylvania, laws that would be passed would be seen as more legitimate, because the person with the conflict would have no say in the matter. The public would be able to more effectively judge that the legislation was not influenced by money in any way.
Effectiveness of Ethics Laws
Oregonians have little patience when it comes to public corruption. According to Daniel Elazar, the people are moralistic, rather than individualistic or traditionalistic (Elazar from Clucas, 2006). What this means is that the Oregon public demands moral virtue in the legislature. In Oregon politics, the means must justify themselves. The Oregon State ethics laws are strict, and apparently effective. Oregon has low public corruption and according to the Business Insider, is ranked number two (Wile, 2013). However, the State Integrity investigation, Oregon ranks 14th (State Integrity Investigation, n.d.). One of the reasons for the rank was that conflict of interest regulations are only 43% effective (State Integrity Investigation, n.d.). As mentioned before, Oregon’s laws do not require a legislator from abstaining when they have a conflict of interest. As a result, some Oregonians believe that money is influencing legislation, and legislator’s decisions to an alarming degree. Part of this has to do with the public’s view of ethics and part of it has to do with the ethics laws themselves. First of all, not all situations that require ethical judgements are mentioned in the law. Second of all, it can be particularly difficult to understand what the laws say.
Critics of ethics codes argue that they, “are filled with meaningless language, their existence in the mass media, corporations, and political campaigning seems not to have promoted a significant improvement in ethicality of communication, there is the danger that a code will be viewed as static, as settling matters once and for all, and they have no ‘teeth’ (Johanessen et al., 2008).” The teeth in this case, are the disincentive to break the rules. Oregon seems to have made the attempt to reconcile the argument that the code will be viewed as static by creating the OGEC. However, the problem can only truly be resolved if the members did not view the rules as settling matters once and for all. We run into another conflict, if members of the OGEC are not judging based on what the law says. In other organizations, it might be acceptable because transparency is not required however, in a government organization, to do this would decrease the legitimacy of the institution.
Despite the significant resources provided by the OGEC, there are legitimate scandals still happening in the Oregon Legislature. Most recently, former Governor Kitzhaber’s fiancé has earned lucrative consulting fees that appear to be directly related to her role as Oregon’s First Lady (Telford, 2015). The OGEC outlines the guidelines and laws regarding the behavior of house officials in the Guide for Public Officials. Upon viewing the guidebook, it is clear to see that there may be a loophole for Mr. Kitzhaber and his fiancé however. Thompson would argue that what has appeared to have happened is unethical regardless of a rule because the appearance of wrongdoing has surfaced. This situation could have arisen out of the ambiguity of the codes. What a fiancé of a public official can and cannot do is not clearly defined, specifically if they are a volunteer. The former governor’s lawyers had gone over the contracts that are in question and found that legally, there was no conflict of interest.
Some legislators think that the ethics laws in Oregon do not go far enough. Representative Greenlick believes that there are problems with the house rules regarding this topic. He stated that a couple of sessions ago, there was a legislator that worked for an online school. His job at the school was to raise funding for the school. He then carried an education bill that would increase funding to his school and only had to state that he had a conflict of interest. He was still able to vote and speak toward the bill, which got overwhelming support (Greenlick, 2015). It makes sense that people would want to increase the education budget because it education is so valued in this country however, the fact that he was able to influence the legislation so profoundly sets a precedent for people of similar circumstances to take advantage of taxpayer money. It can also lead to situations that hurt competition in the marketplace by flooding substandard brands. Greenlick also thinks that there may be some problems with the way campaign contributions work (Greenlick, 2015). He stated that because of Citizens United the government can’t restrict someone from donating; however what we can change is what a legislator is allowed to receive (Greenlick, 2015).
Representative Evans believes that there are some problems with ethics laws centered around campaign contributions as well. He stated that, “the intentions [of the ethics laws] are right, but the rules are bent into a pretzel because of the conception of speech as money (Evans, 2015).” Rep. Evans is a Communication Professor at a local college and most would consider him to be a hard working middle class man. Since Oregon is a citizen legislature and not a professional legislature, some legislators must have another job to support themselves. On top of that, many offices are understaffed. The legislature meets every year and must have paid staff to help them. Under the current law, it is not ok for a lobbyist to buy a lobster dinner for a legislator, but it is ok to receive a $100,000 check as a campaign contribution. This 100,000 dollar check can then be used to pay for more staff, giving that legislator a specific edge on others. The same goes for wealthy legislators that can pay staff out of their own pockets. Those legislators then have the ability to produce and be able to work on more legislation. Representative Evans stated that, “the policy current is hurt because of the impact of money and perception of money as speech (Evans, 2015).” Essentially the policies are speech, and those who have more money, have more speech (policies).
The scandal has prompted the new Governor Kate Brown to propose yet another ethics overhaul that she hopes to have ready by 2016. Her first bill aims to investigate how Oregon state agencies “process and produce public records (The Office of the Governor of Oregon, 2015).” How the government spends the money of taxpayers is an ethical question. The government should spend the money in a way that increases benefits to society in a thrifty way. The intention of the law is to figure out what the most effective methods are, either locally or nationally, and develop recommendations for making the system faster, more efficient, and consistent across state agencies (The Office of the Governor of Oregon, 2015).”
The second bill aims to first, “identify [a] First Spouse [or] Partner as a public official,” require them to submit to public record what their economic interests are in order to be able to better determine whether or not there was a conflict of interest, and increase the penalty for, “knowingly violating use of office Provisions in egregious cases (The Office of the Governor of Oregon, 2015).” The current legislation imposes a fine of $5000 for violations and also includes that any money gained in violation also be fined twice of the amount gained. Contrary to what the critics of ethics codes say, the OGEC and the ethics laws in Oregon have sharp teeth, and if things keep going the same direction, will only get sharper.
Her third bill requires that the Ethics Commission, “remove the requirement that an investigation of a complaint must cease when a criminal investigation is commenced, reduce the time allowed for the Commission to decide whether to investigate a complaint,” remove the ability for the Governor to appoint three Ethics Commissioners and give the appointment power to other officials, and to “Create [an] online reporting system to include case management for complaints filed and advisory or other opinions (The Office of the Governor of Oregon, 2015).” As we have seen in the past, sometimes, those in executive office attempt to appoint people to positions who favor them. The Governor is attempting to avoid allowing one person to have greater influence over the OGEC. Allowing this power to stay as is, allows for a governor to be able to shape the OGEC to their liking, appointing people who would agree with them more, or share the same standards of ethics. Secondly allowing one person to hold more power in regards to what is ethical is unethical in itself. Ethics involves interaction and cannot be determined in a monological relationship.
From the creation of the Oregon Government Ethics commission to Governor Brown’s legislative concepts, the Oregon State Legislature has dedicated a significant amount of work to improve its standards of ethics over the last several decades. It seems to be apparent that legislators will continue to improve the ethics of the Oregon Legislature in years ahead to decrease corruption, and the appearance of corruption in order to maintain credibility and legislative integrity in the eyes of their public.
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