Are pigs really flying, or are legislators just lying?

I had high hopes coming into the 2009 Legislative Session. I had hoped that something would be done about ethics reform this year. Finally, not only was the public ready (this year more than ever), but it seemed legislators were ready, too. Several complaints were brought forward just months earlier. These ethics complaints clearly demonstrated that legislators were unable to govern themselves when it came to following through on any action that might be brought against one of their own. Most agreed that they needed to fix it and many vowed to do just that.

In January of 2007, a Deseret News writer suggested that Utah would ban lobbyists' gifts "when pigs fly". When a few bills made it to the House Ethics Committee for consideration the committee members took the opportunity to blame the media for the public's "misperception" of ethics on the hill, claiming that they only know what the media tells them and often the media isn't giving them the entire picture. During discussion of HB 213 Ban on Gifts to Legislators they felt comfortable enough to joke that they had seen pigs flying above the capitol that morning and the Deseret News reporter was even in the room. At the end of the session, Speaker Clark was presented with a pig made out of wood - wings and all! The funny thing is, HB 213 was stalled in rules committee just as we suspected and it FAILED! How could they possibly have taken credit for flying pigs when there is no ban on gifts to Legislators?

Of the 21 ethics reform bills that were filed, only 5 of them were sent to the Governor for his signature. The Utah State Legislature website breaks it all down for us, but let me fill you in on some details.

HB 346 Campaign and Financial Reporting Requirements Amendments

You might find it interesting to know that HB 346, Campaign and Financial Reporting Requirements Amendments, originally required contributions and public service assistance to be reported within 5 days of the day on which they were received. The main purpose of this bill was to increase the speed of reporting requirements, thus making it more difficult for legislators to report donations after they had already been elected. It passed out of the House Ethics Committee with a favorable recommendation and then out of the House with a unanimous vote with original language. On the Senate floor the bill was substituted, meaning that changes were made to it, specifically that the 5 day reporting requirement was changed to 30 days. The bill was substituted yet again (on the very same day, two days before the end of the session) and under suspension of the rules it was considered read for the second and third time and a vote was taken and passed out of the Senate.

Senator Valentine made the first substitute that did the real damage. A second substitute was written up but not made public or voted on, and finally, Senator Bramble added definition language to the bill in the third and final substitute, essentially watering the bill down even more by adding more things that "Contribution" does NOT include.

When a bill undergoes that many changes after it has already passed out of the House it is necessary for the House to either "concur" or agree to the Senate amendments or take another vote. It is common practice for the House to concur on Senate Amendments and for the Senate to likewise concur with House amendments to Senate bills, especially as the session winds down to a close. What is that good for? Laws that haven't been closely scrutinized. Laws that lose their original intent. Only four representatives voted not to concur to the Senate amendments.

HJR 14 Joint Rules Resolution - Ethics Training Course Provisions

HJR 14 is the only piece of legislation that adds rules to ethics procedures and this is what concerned me the most. After all the problems the ethics committee complained about, not having the proper guidelines and guidance when it came to knowing if Greg Hughes was guilty of the complaints brought against him, I would have thought that they would try to fix their process and rules! The best they came up with is to have legislators undergo online training, but what happens the next time fellow legislators file another ethics complaint? Do the new rules requiring legislators to know what is ethical and what isn't ethical help the ethics committee with the problems they had last year?

To add to the debacle, the Senate mucked with this bill just like they did with HB 346. With only one day left in the session they amended the bill to include lobbyists! I might have thought that a great thing if it weren't for the last line of the amended bill. It states:

45a S. (6) A lobbyist who does not complete the training required by this rule is subject to an
45b ethics complaint under Senate or House rule. .S

Notice that it doesn't say "A legislator or lobbyist". I find that somewhat curious. Are legislators not subject to an ethics complaint if they fail to complete the training? Legislators are off the hook according to this new law and apparently nobody noticed.

Instead of rushing amendments through that result in sub-par law they should have been fixing their own ethics process and rules. If you've forgotten how bad it is read Bob Bernick's take after he listened to the taped testimony of Rep. Greg Hughes during the last Ethics Committee investigation. They desperately needed to make themselves some new rules but they ignored that completely. They'll certainly keep ignoring the need for an independent Ethics Commission, too. But don't worry, pigs were flying this year, right? Congratulations to everyone! Congratulations to the rules committees who did their job with flying colors just as in previous years. They held over 75% of the ethics bills that came before them. They seem to think that's their job. Take a look at some of the good bills that they failed to take action on:

• HB 213 Ban on Gifts to Legislators (When Pigs Fly!)
  This is the big "when pigs fly" bill that they were prematurely celebrating. Someone might want to tell them that they have to pass this bill out and enact it into law in order for the pigs to fly! This did not pass, it got stuck in the House Rules Committee like so many other ethics bills this year and in previous years.


• SR 4 Senate Rules Resolution - Ethics Revisions
  Stuck in Senate Rules Committee. This bill would have fixed some of the same problems the House Ethics Committee ran into for the next time there was a complaint against a Senator.


• SJR 19 Joint Resolution Regarding Legislative Ethics
  Stuck in Senate Rules Committee. Minor adjustment that allows for Senate Rule to be followed when considering the make-up of a Senate Ethics Committee.


• SB 101 State Ethics Commission
  This is what we needed! It was stuck in the Senate Rules Committee and would have created Utah's first and much needed independent State Ethics Commission.


• HJR 26 Joint Rules Resolution on the Selection of Ethics Committee Members
  Stuck in House Rules Committee. This bill would have fixed some of the problems that last year's House Ethics Committee ran into, beginning with the composition of the committee.
  
• HB 312 Amended Campaign Finance Filings
  This bill passed out of the House Government Operations Committee favorably and then passed out of the House but died in the Senate Education Committee. The sponsor of this bill was Sheryl Allen and it failed most likely due to retribution/payback. She was involved in the Hughes ethics complaint. Senator Bramble, an influential member of the Senate Education Committee, virtually admitted to conduct that is criminal during his testimony while defending Hughes.


• HB 282 Task Force on Legislative Reform
  Another bill that might have actually had some real impact on ethics reform which the House Rules Committee held.


• HB 268 Legislator Reporting of Gifts and Other Items
  This bill overlapped what SB 156 was doing and was held in the House Rules Committee.
  
• HB 159 Ethics Provisions
  This bill addressed all the problems that were present during the Hughes investigation. It never made it past the House Rules Committee.
  
• HB 139 Legislator Gift Reporting Act
  An overlap bill with SB 156 which was held in the House Rules Committee.
  
• HB 109 Modifications to Campaign Finance
  This bill would have put a limit of $15,000 on campaign contributions and removed inconsistent definitions of "political purposes". It died in the House Rules Committee.
  
• HB 103 Revolving Door Limitation for Public Officials to Become Lobbyists
  This was an overlap with HB 345 and kept in the House Rules Committee.
  
• HB 93 Establishment of State Ethics Commission
  Another bill that would have established the State Ethics Commission. It's what the people want, but they didn't listen. It was left on the desk in, you guessed it, the House Rules Committee.
  
• HB 84 Campaign Financing and Gift Regulation
  Another gift bill that was taken care of in SB 156. They had a few choices this year in regulating gifts and they kept this one in the House Rules Committee.

And still more that didn't even get as far as the House or Senate Rules Committee:

• SJR 15 Joint Rules Resolution - Legislative Ethics
  Empty Bill that Sen. Valentine thought about doing something with but never did for whatever reason.


• HB 348 Creation of the Office of Inspector General
  This bill didn't have language and didn't deserve language. It would have favored having one person judge the ethics of legislators instead of forming a commission. One person is subject to being influenced and being biased. Not a good idea.

You can read more about the lucky five here.

So there you have it. The newspapers have apparently succumbed to the pressure to quit "misrepresenting" ethics on the hill. I've only seen a couple of stories that question whether or not ethics reform happened this year. It's quite clear to me that it did not and my next post will illustrate how out-of-control things got up there this year, specifically concerning Bramble's SB 199 which I like to call the anti-PTA bill. Talk about ethics!

Bad Bill Alert! Byrne's 65% "Solution" is Back (SB241)

You can read about what I've previously written about the 65% "Solution" here (Aug. 2008) and here (Sep. 2008), but here are some items you should be aware of:

• It's nothing new. It was a bad idea then, it's a bad idea now.
  
  
• This bad idea originated with Tim Mooney of Arizona. He used Patrick Byrne's (CEO of Overstock.com) money and they organized their efforts and formed an organization known as "First Class Education"
  
  
• First Class Education have apparently abandoned their original efforts. Their website is an empty WordPress blog, but don't be fooled. Thanks to technology (WayBack Machine) you can still view their old site.
  
  
• Did I mention that it's nothing new? Four years ago, they attempted to get legislation passed in every state. They ultimately failed (they wanted to have legislation in all 50 states by 2008) despite the nasty memo that they circulated among legislators outlining their POLITICAL MOTIVES!
  
  
• This is not a new bill. In 2006, Utah was included in their efforts when Greg Hughes sponsored HB143 titled "Instructional Expenses Requirements"
  
  
• The 2006 bill made it out of the House Education Committee. It was amended before it passed out favorably with a vote of 7 "Yeas", 6 "Nays" and 2 "Absent".
  
  
• The new bill is being sponsored by Senator Mark B. Madsen in the form of SB241 titled "Instructional Expenses". It is word for word exactly the same bill (unamended version) of HB143 in 2006.
  
  
• Tim Mooney claims that the 65% Solution is currently on hold. When I asked him why it was on hold he told me it was due to timing. When I told him about SB241 in Utah he was surprised and told me that he wasn't aware of it. I asked him if he was still working with Patrick Byrne on this issue and he confirmed that he was.
  
  
• Patrick Byrne is the newly appointed Co-Chair of the Friedman Foundation. Their agenda and goal is to have vouchers and legislation that supports vouchers in all 50 states. They already claim Utah as a success story for their involvement in the passage of the Carson Smith Scholarship program.
  
  
• There is no basis or research for why they chose 65% that should be spent in the classroom. Why not 68% or 72%? Utah already spends at least 65% in the classroom. The purposes of this bill are outlined in their own memo and their agenda hasn't changed. Don't be fooled!

Developers, Lobbyists, and Legislative Ethics

Interesting stuff, ethics. Sometimes it's hard to tell what's in a name, and it appears that "ethics" can mean different things to different people. Sometimes the apparent lack of ethics in a given situation comes down to a differing world view. Take Sen. Buttars and his view on same-sex couples and their civil liberties. No matter where you fall on the topic, the side you view as "ethical" comes down to fundamental differences in what you define as right and wrong. Buttar's embarrassing antics aside, and acknowledging heated debate and belief on both sides, I believe fundamentally differing world views will always cause each of us to question our definition of ethics and who is right or wrong in any given situation.

Defining Ethics

HOWEVER, broader world view perspectives are not the focus of ethics reform at Capitol Hill. The ethics reform we are all calling for can and should be clearly defined and measured. But will it even come close? A couple of GOP ethics bills have made their way into the Senate, and here are the ethics bills currently being considered in the House Ethics Committee. What exactly is the definition of "ethics" up on the hill? For example, as a public servant, is it ethical to have to list all of the gifts you receive from lobbyists, or is it ethical to simply refuse gifts...as an honest attempt to remain unbeholden to anyone except your constituents? I have my own opinion, and it has nothing to do with limiting or listing gifts.

Developers and Lobbyists Need To Go

I also wonder if its ethical for a legislature full of developers and former/future lobbyists to to police themselves. The Governor's "ethics commission" does not look like it's shaping up to actually become an independent body providing oversight on ethics at all. The developers and lobbyists will continue to run the state, remain loyal to their overall agendas, and get away with looking like they are truly interested in ethics by participating in this year's high-profile ethics reform. In addition to truly effective ethics legislation and a bona fide independent Ethics Commission, the current gaggle of developers and lobbyists parading as public servants need to be ousted in the next round of elections. They need to be replaced by individuals who are actually interested in, and capable of, actually serving the public in honest, ethical, and transparent ways.

Do your research, my friends. Understand not only the world view of your public servants, but also their definition of ethics and what loyalties they bring with them to the hill...

Did the media dupe us on Huntsman's "Ethics Commission"?

On January 22, 2009, Governor Huntsman announced a newly-formed Commission. That evening and during the next 24 hours the headlines read "Huntsman appoints ethics reform panel", "Huntsman launches commission to clean up Utah politics", and "Governor organizes government ethics commission". I remember the evening well. I was jogging on the treadmill and nearly fell off it when it was announced on the ten o'clock news. I was pleased, but skeptical.

Imagine my surprise when I hear Doug Wright (a member of the commission) on the morning news clarifying that when the commission was formed Governor Huntsman had a lot more things in mind...ethics being only one item on the long list. Surprise turns to disappointment when I read the formal name of the commission, "Governor's Commission on Strengthening Utah's Democracy". That doesn't sound anything like an ethics commission!

Based on news reports, almost all of them spinning the ethics reform angle, I was able to determine that Huntsman isn't really sure exactly what will come of the commission and that he won't tell the commission specifically what the recommendations should look like. Quotes like, "They will do their thing and we will do ours, and I suspect that over time, some of these things will be taken up" didn't inspire confidence for the direction of the commission. I was beginning to understand that my idea of an ethics commission was a lot different than the media's spin on what Huntsman never meant to be an ethics commission in the first place!

Huntsman spokeswoman Lisa Roskelley said the commission's purpose is to look "at reasons why Utahns aren't participating and don't have the necessary confidence in their government system. This group is not intended to look solely at ethics or even legislative ethics."

Disappointment turns to bananas (as in "mad as heck") when I realize that the local mainstream media fed us what we wanted to hear! A lot of people probably didn't catch on to what they were sold a couple of weeks ago. Happy to see that something was finally being done about last year's unethical behavior, they went along with the daydream. I hate to be the one to wake you up, but wipe the drool off your face and snap out of it! Huntsman has something else going on, but it likely won't bring about the major ethics reform that we have been asking for. Who knows, maybe his commission will be able to have some influence or come up with some good ideas or recommendations. He's not even sure, so how can we be?

I'm sure I'll be looking more into the Governor's Commission on Strengthening Utah's Democracy, but for now there are real bills, a lot of them making their way to the House Ethics Committee as recently as Monday. These bills would have the potential for real change to how business is done up on the hill. Keep an eye on them. They've already made it further than some ethics bills made it last year. Congrats to the 2009 House Rules Commmittee.

Unfortunately, House Speaker Dave Clark has already given up. He recently said, "It's not going to happen in this session. This is going to take, I think, through this next summer." I sincerely hope he was just trying to incite a riot. In any case, it's going to take continued public outcry if anything is to be done. Polls alone aren't enough. We had polls last year and nothing was done. We need polls, scandals (plenty to choose from) and public outcry. The legislators themselves understand the need for public outcry and have stated that it will take " a burst of public support" before they can proceed with any kind of ethics reform legislation, and they were saying that in January, 2008. They told us what it's going to take, you take it from here.

What is the status of the omnibus bill complaint?

We're less than a week away from the beginning of the 2009 Legislative Session here in Utah and there is quite a buzz surrounding this session. Budget cuts have a lot to do with that and there is also much talk about ethics reform. We've been pretty loud about ethics reform here at the Accountability blog. In fact, before we kick off the next session on January 26, 2009, and all that will come with it, we ought to revisit a few topics that are still ongoing and some that have, perhaps, even been forgotten.

There is new information about the illegal "Omnibus Bill" officially known as SB 2 (second substitute). The plaintiffs have filed for a partial judgement concerning non-triable, unconstitutional issues of fact, specifically concerning counts three and four of the complaint on file. Count three and count four were not the main focus of the complaint last year, at least not for bloggers and news reporters. A lot of work has been done by the plaintiffs and their lawyers to show how unconstitutional the omnibus bill is, based on counts three and four. They are:

• Count Three: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to "Teacher Salary Supplement Program" SB 35 or lines 774 to 864 of SB2)
  
• Count Four: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to Section 11 of SB 2 - Requiring an "independent party" to evaluate public school instructional materials )

I'm happy to see that this is being pursued and after reading through the "Plaintiffs' Motion for Partial Summary Judgment on Article 10 Related Claims," that was served on January 5th. I was impressed with the amount of case law that was cited and how it applies in this situation. Last year I, and others, focused almost entirely on counts one and two. They state that SB 2 consisted of 14 other bills that, according to the Utah Constitution, a bill is required to have 1) a single subject and 2) a clear title. These were the most obvious parts of the complaint, but now that counts three and four have been elaborated on, they are equally valid and convincing, if not more so.

You'll need to read the document in it's entirety to fully understand where the plaintiffs are coming from, but I'll pull out some main points (the section headers, to be exact) to illustrate the newly elaborated concerns so that you can see what I'm talking about.

• SB 2 UNCONSTITUTIONALLY DELEGATES THE USBE'S POWERS AND DUTIES OF GENERAL CONTROL AND SUPERVISION OF PUBLIC EDUCATION PROGRAMS TO THE UDHRM AND PRIVATE PARTIES


• The Legislature May Not Transfer the Power Which Has Been Constitutionally Vested in a Constitutional Office to Other Agencies or to Private Parties.


• The USBE Is a Constitutional Office With Constitutionally-Vested Power to Control and Supervise Public Education in the State of Utah.


• The Teacher Salary Supplement Program and the Textbook Approval Program of SB 2 Are Impermissible Legislative Encroachments upon the Administrative Power of the USBE.
  
• SB 2 UNCONSTITUTIONALLY DELEGATES GOVERNMENT POWER TO PRIVATE PARTIES


• CONCLUSION


• Sections 19,20, and 11 of SB 2, the so-called Teacher Salary Supplement Program and Textbook Approval Program, should be declared unconstitutional. Both programs violate the non-delegation doctrine as that principle of constitutional law has been applied on numerous occasions by the Utah Supreme Court. They provide that another agency, the UDHRM, and private parties shall administer programs, the general control and supervision of which are constitutionally committed to the USBE under Article 10, Section 3. The Textbook Approval Program suffers from the additional constitutional defect of delegating government power to a private party.

Whatever happens with the complaint, I believe legislators in the upcoming session will avoid the mistakes they made last year. They will be much more careful about encroaching upon powers and logrolling. We're all watching!

New Ethics Bills Already Raising Questions....And Eyebrows

Over the past couple of days, the Salt Lake Tribune has followed up on the question of ethics in Utah's legislature. An article in today's paper, for example, highlights the misuse of lobbyist gifts, and provides some insight into the nearly $170,000 in lobbyist gifts legislators racked up last year. Insight, becomes a contradiction in terms with regard to gifts, however, since the vast majority of them have been obscured from public view and almost entirely undisclosed. That is all supposed to change and is something, among other ethics reforms, that many of us have been calling for.

On Monday, a hint of things to come (at least in terms of dialogue and the appearance of change) came in the form of an ethics package consisting of four bills. I've said before, I want to be encouraged...no, blown away, by real change in the legislature. I want these bills to be a real step towards transparency in government and a commitment to putting the public trust and service before monetary gain and political agendas.

Keep your eye on the process of finding consensus and, ultimately, acceptance of these bills, folks. It's bound to reveal a lot about some of our "public servants" and their motives for serving. I hope it raises a few questions for you like it does for me. For example, is Senate President, Michael Waddoups, serious when he says, of banning lobbyist gifts, that "we're inclined to think that disclosure is a better thing than prohibition, because prohibition tends to turn well-meaning acts into criminal acts." WHAT? Is this the same guy who wants liquor to be "prohibited" from even being viewed in Utah restaurants? Does anyone else see the incongruity, no, the borderline schizophrenia here? In addition, a few legislators are squirming in the face of bill "four" in the package which prohibits legislators from becoming lobbyists for a year after they leave office....with no mention of what that means for current legislators who are already paid lobbyists for various industries.

Let the shakedown begin.