Having covered it from its inception in 1989 to the present day, I have a special regard for the state Ethics Commission, so it is good to hear lawmakers calling for tougher ethics laws in light of the Gazette-Mail/ProPublica investigation into Gov. Jim Justice‘s myriad potential conflicts of interest involving The Greenbrier.
Given my position as sort of the unofficial institutional history of the commission, I’m probably in a unique position to offer some proposed changes I would hope to see enacted to really give teeth to the state Ethics Act:
1. Increase funding for the Ethics Commission. From city hall to Washington, the oldest trick in the governmental playbook is to create some commission or agency with lofty and significant purposes, and then underfund it to the point of dysfunction.
The Ethics Commission has always operated on a relative shoestring budget, currently $719,844 this budget year.
Most of that, $606,969, is for salaries and benefits for a staff of seven. The current expenses line item is $104,501 this year — an amount that doesn’t stretch far if the commission is attempting to undertake a number of extensive investigations of alleged ethics violations.
Ten years ago, the Ethics Commission budget was $693,886, or $829,838 in 2019 dollars, meaning the agency only has 87 percent of the spending capacity it had a decade ago.
The small staff does yeoman’s work to comply with the agency’s myriad responsibilities, including: ethics training; compilation of financial disclosures for candidates and public officials; registering lobbyists and publishing an annual directory of the same; compilation of lobbyists’ spending disclosures three times a year; researching and approving advisory opinions on ethical questions, as well as questions regarding the Open Meetings Act; acting on employment exemption requests, as well as investigating and adjudicating potential ethics violations; and probably numerous other duties I’m forgetting to mention.
However, there’s only so much a small staff with a limited budget can do.
The Gazette-Mail/ProPublica investigation relied heavily on lobbyists’ disclosures (many of which had been referenced in a less comprehensive manner in this column).
As Ken Ward Jr. noted afterward, the lobbyist activity reports are a greatly underused resource for news reporters, given they can contain a treasure trove of information about how corporate interests are trying to gain influence with public officials.
One reason they’re underused is that the Ethics Commission lacks the staff or resources to post the forms (which in any given reporting period, probably run a total of 600-800 pages) online.
Besides requiring a trip to Charleston, going through the disclosures is an old school ink-and-paper slog. Having the additional resources to be able to put the disclosures into a searchable online database would benefit reporters and the public alike.
Likewise, the lack of staff and resources means the commission really can’t do much in the way of verification and cross-checking of lobbyist activity reports and candidate/public official financial disclosures.
That means lobbyists can get away with cutting corners, such as reporting a meal for three or four legislators under group entertainment, thus evading the requirement to disclose recipients of meals and beverages by name.
Likewise, some politicians go into extensive detail on their financial disclosures — Robin Davis used to have a several-page attachment of stock holdings valued at $10,000-plus — while others get away with a vague references to “various stock holdings” or the like, and the Ethics Commission simply doesn’t have the manpower to give them an “incomplete” and require further detail.
2. Assure autonomy. Over the years, legislators have not been shy about retaliating against the commission for enforcing the Ethics Act, as when the commission took away their ability to accept free golf outings or whitewater trips, or to keep hotel bonus points accumulated during legislative sessions. (For the latter, the Legislature, in 2008, amended the Ethics Act to exempt said points from commission oversight.)
Early on, the Legislature retaliated by revoking the commission’s ability to initiate investigations of ethics violations, a power that was not restored until many years later, and over the years, have cut the commission’s budget as punishment. More recently, legislators forced out a commission executive director who dared oppose a blatantly unethical bill that would have carved out an exception to the Ethic Act’s prohibition on using public office for private gain.
Over the years, one of the criticisms of the Ethics Commission has been it will go after the forester who wants to operate a Christmas tree farm on the side, or the small-town mayor who used his city-assigned cellphone for campaign calls, but can’t seem to spot ethics violations on the part of legislators or constitutional officers.
Given history and political realities, who can blame them for not taking on individuals who have the ability to gut the agency in response?
The solution would be an Ethics Commission with full autonomy.
Brainstorming here, that could entail preventing the Legislature from reducing the commission’s budget appropriation. Perhaps establishing an independent commission that would determine adequate funding levels for the commission — amounts that the Legislature would be required to automatically approve.
Likewise, the state Code could be rewritten to prevent the Legislature from repealing or weakening provisions in the Ethics Act without the consent of the commission.
3. More transparency. As Ward noted, lobbyist spending disclosures are imperfect forms, as are the financial disclosures.
Knowing the commission is too short-handed to thoroughly review each form, the completeness of the disclosures varies widely from vague to comprehensive. (About a dozen lobbyists each year do have their spending reports audited, giving them incentive not to falsify or fail to report spending.)
It wouldn’t hurt to require more detail on the forms. Require, for instance, in addition to name, date and cost for meals and beverages, the name of the restaurant or venue. (Something some lobbyists already disclose.) For group entertainment, require attendance lists of public officials — again, something some lobbyists provide even though it is not required under current law.
The stronger the Ethics Act can be, and the more strictly enforced it can be, the more benefit to the public.
Sen. William Ihlenfeld’s proposal to require all governors to place all business assets into blind trusts is also a good step forward, despite claims by Justice’s attorneys that doing so makes no sense and would simply be a façade.
A blind trust isn’t designed to give the individual amnesia about what investments he or she owns, but to remove the individual from management decisions involving the business or businesses — something that, as reported here and in the Gazette-Mail/ProPublica investigation, Justice has continued to do as governor.
Any time that a governor spends managing private business interests is time taken away from the business of running the state.
The Greenbrier is such an ethical minefield, it has managed to entangle perhaps the state’s most squeaky-clean politician, a man who went nearly two years without a fulltime job to avoid a potential conflict of interest.
During the state Chamber of Commerce’s annual Business Summit at The Greenbrier, West Virginians for Armstead will be hosting a reelection fundraising meet-and-greet with Supreme Court Justice Tim Armstead this Thursday in the resort’s Spring Room.
I have no idea what meeting space rentals go for at The Greenbrier, but I expect they’re dear.
Given the role that Justice played in helping Armstead achieve his current position, renting space at Justice’s resort could appear like a quid pro quo. Conversely, if The Greenbrier is providing the space gratis, it looks bad, given that a case involving Justice could be before the high court shortly.
Finally, as high-priced, highly experienced attorneys struggle to comprehend the meaning of the word “reside,” I note with interest a special session bill that mysteriously disappeared last month.
In June, the U.S. Supreme Court struck down a Tennessee law requiring that individuals seeking state retail liquor licenses to be residents of the state for at least two years.
While it did not strike down residency requirements for state business licenses in general, it found that Tennessee’s two-year requirement was overly burdensome and designed to give an unfair advantage to in-state businesses.
That prompted attorneys with the state Alcohol Beverage Control Administration and Lottery Commission to draft legislation to bring state residency requirements for retail liquor and Limited Video Lottery licenses into conformity with the Supreme Court ruling (House Bill 208).
Like many special session bills, it appeared fast-tracked: It was introduced, read a first time and sent to House Judiciary. Then, nothing.
I suspect its demise had to do with attorneys discovering the bill would have added a new, more concise, precise definition of “residence” into state law.
It would have added a new definition of “residence” or “residency” as being, “where an individual maintains a bona fide primary place of abode and spends in the aggregate more than 183 days [at least eight-hour days] of the preceding taxable year ...”
That’s no good for lawyers who want to keep the definition of reside as nebulous as possible.