The Purposes Behind Revolving Door Provisions

Anonymous

Wed, 09/26/2012 - 06:11

Complaints/ Investigations/Hearings

An interesting case in Iowa raises questions about the purposes behind post-employment, or "revolving door," provisions, including whom they are
supposed to protect and why. 
 
According to <a href="http://muscatinejournal.com/news/local/gpc-pushes-back-and-so-does-its-…; target="”_blank”">an

Associated Press article yesterday</a>, a former chief of staff
and general counsel to Iowa's then governor is representing
Muscatine, IA citizens in their suit against Grain Processing Corp. (GPC)
for long-standing pollution in the town. GPC has filed a motion to
disqualify the attorney, and other attorneys he brought into the
case, on the grounds that the attorney dealt with GPC's pollution
when he was a state official. GPC has also filed a complaint with
the Iowa Ethics and Campaign Disclosure Board which, according to <a href="http://www.press-citizen.com/article/20120925/NEWS01/309250010/Ethics-b…; target="”_blank”">an
article in Monday's Iowa City Press-Citizen</a>, will be
considering the matter today.

The relevant Iowa law is as follows:<blockquote>

§68B.7 Prohibited Use of Influence. 
1. A person who has served as an official ... shall not within a
period of two years after the termination of such service or
employment receive compensation for any services rendered on behalf
of any person ... in relation to any case, proceeding, or
application with respect to which the person was directly concerned
and personally participated during the period of service or
employment.</blockquote>

This rule seems very cut and dry. For two years after leaving public
service, an official cannot make money by rendering services that
have to do with a case he was involved in. 
 
But a rule such as this was passed for a purpose, in fact for
several purposes, only one of which can be determined from the
subsection's title "Prohibited Use of Influence." So it's important
to look at the purposes in order to determine whether the rule is
relevant to this particular situation. 
 
Preferential Treatment 
Revolving door provisions are intended to
prevent officials and employees from giving preferential treatment
to individuals and entities while in office, in order to get jobs or
contracts with them after they leave public service. They are also
intended to make it harder for individuals and entities to use a job
offer to get this preferential treatment or unfair advantage. In
terms of appearance to the public, post-employment work opportunities are
indistinguishable from bribes. 
 
There is no reason to believe that the citizens of Muscatine were
getting preferential treatment from the attorney while he was an official,
so that they would hire him as their lawyer. And there is no
reason to believe that the citizens of Muscatine offered to hire the
attorney if he pushed their cause during his time in the government.
In fact, it looks like it was the attorney's idea to try to form a
class action suit. 
 
Influence 
The subsection's title speaks of "influence," and this is
indeed one of the purposes of a revolving door provision. Such a
provision is intended to prevent individuals and entities from
obtaining undue influence by hiring former
government officials and employees in order to make use, for their benefit, of the former official's personal relationships
with members of governmental agencies and boards. 
 
A suit against a polluter brought by citizens of the town it
pollutes does not require the involvement of state officials. In
fact, state actions against GPC have already been completed. There
is no need for the attorney to use his influence. This is not the
sort of situation contemplated by the provision, at least what
appears from the title to be its principal purpose. 
 
Using Public Service as a Stepping Stone 
The revolving door between government and the businesses that
benefit from government contracts, grants, and permits sends the
message to citizens that people run for office and accept government appointments in order to win the
corporate lottery, that is, they use their time in office, and their
power over government’s transactions with business, to ensure
themselves well-paid jobs when they leave government. This
undermines the public’s confidence in its officials putting the
public interest ahead of their own interest in post-government work.
Officials are seen as using their government service as a stepping
stone to help themselves and the firms that do business with the
government, a win-win deal for everyone but the public. 
 
This is the only principal purpose of revolving door provisions that
is relevant to this situation. If the attorney wins the class action against GPC, he could make a great deal of
money. He learned about the situation while in public service. But
the situation was public. In fact, the state's action against GPC
showed a spotlight on the pollution situation. Others could have put
together a class action while the attorney was still working for the
governor. His position gave him no advantage, except to the extent
the citizens of Muscatine might have trusted him more due to his
public service. 
 
Confidential Information 
It is possible that the attorney had access to confidential
information that could be used to help his clients and, indirectly,
himself. In fact, GPC is making this argument in its motion to
disqualify the attorney (based on one of the Rules of Professional
Conduct). The attorney says that all the information he had access
to in his work for the governor was public information. Pollution
information should, in any event, be public. After all, there were public
actions against GPC, which the attorney was not involved in. These
would most likely have made all the information public. 
 
But let's assume there was some information that was considered
confidential and which could, if used in the suit against GPC,
benefit the attorney. This information would also, and more
directly, benefit the citizens of Muscatine. This raises the
question whether information that is held confidentially for the
public interest should be kept confidential even if its secrecy hurts the
public as specifically as it would in this case. This would be a
difficult argument to make, especially in a matter that involves not
private business, but public pollution. 
 
Conclusion 
Although beginning <a href="http://www.documentcloud.org/documents/439418-motion-to-disqualify-resp…; target="”_blank”">his
Response</a> by pointing out how the situation is nothing like the
sort of influence peddling the revolving door provision was intended
to prevent, the attorney's argument is focused on the language in
the revolving door provisions, particularly that he
was not "directly concerned and personally participated" in any
"case, proceeding or application." 
 
But even if he had been directly concerned in a case against GPC,
this is not the sort of situation the revolving door provision was
inteded to deal with. It is important that ethics commissions and
courts go beyond the language of an ethics code to consider whether
it could have been intended for the purpose at hand: an
attempt to disqualify attorneys who put together a class action for
a town that has been heavily polluted by a company's plant. 
 
The door did not revolve here. No one gained preferential treatment,
no one peddled his influence, no confidential information was
misused for an individual or company's benefit, and even though the
attorney might make a lot of money out of the suit, the primary
beneficiaries are the citizens of a town that has suffered for many
years from one plant's pollution. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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