Ethics Bills Face Complex Dynamics
Open government legislation would move public
official investigations, open financial reports
by Mark Henricks
© The Austin Bulldog 2015
Part 4 in a Series
Posted Monday April 20, 2015 2:42pm
Although some proposed legislation in the current session promises to improve public access to information, a tangled web of factors including fear of the unknown and lack of a major scandal will likely keep state legislators from enacting major open government and ethics legislation.
Denise DavisThat was the consensus of participants in a panel discussion on Legislative Developments held April 9, 2015, as part of the City of Austin’s Open Government Symposium. Moderator, Cary Grace, an assistant city attorney and interim deputy officer of the city’s Intergovernmental Relations Office, was joined by panelists Tim Sorrells, former general counsel of the Texas Ethics Commission, and Denise Davis, former chief of staff to Texas House Speaker Joe Straus and currently a lobbyist and partner in law firm Davis Kaufman.
Davis, who also formerly served as parliamentarian and special counsel to the Texas House of Representatives, said new members often arrive in the Capitol intending to pass ethics legislation but most waver because of worries about potential unintended consequences of new ethics laws.
The specter of possibly having to back-pedal on proposals or even wind up lobbying to kill their own bills generally scares them off for good, she said. “You don’t want to be the person that has killed an ethics bill,” Davis explained. “That's the kind of thing that gets you on 10 worst lists.”
Attorney Sorrells spent 12 years at the Texas Ethics Commission, which among other things advises legislators about the propriety of actions they are considering. He said that the attitude about ethical behavior among legislators is that unless something is being done secretly, it is probably acceptable. “The way it’s working in Texas is, you can do it as long as you tell somebody about it,” he said.
Legislators’ comfort with that attitude, coupled with unwillingness to initiate legislation that could require more rules, means no major change can be expected in Texas open government laws unless something happens to spur it, Sorrells said. Legislators tend to be reactive rather than proactive when it comes to ethics and open government legislation. As an example, he pointed to the 1971 Sharpstown stock fraud scandal. That episode produced federal criminal charges against the attorney general and state insurance commissioner and allegations of bribery that went all the way to the governor’s office.
Sharpstown scandal triggered reforms
Reaction to Sharpstown in the 1973 legislative session led to tighter lobbying restrictions, contribution reporting, requirements for personal financial statements, and early open records laws. “It was kind of the starting point for many of the modern day ethics laws,” Sorrells said. Similar bursts of ethics legislation followed subsequent scandals, including the Brilab corruption investigation in 1980 that brought down Speaker Billy Clayton and the 1989 episode when chicken tycoon Bo Pilgrim passed out $10,000 checks on the Senate floor during a vote on workplace safety legislation.
These episodes of enthusiasm and anxiety about ethics cast long shadows. “Even 40 years later, you have the Sharpstown issue looming large over advice you give to members,” Davis said. However, without a similar scandal to generate outrage, legislators tend to have little interest in major overhauls, she added.
Tinkering, however, is popular. Sorrells, who is now in private practice dispensing advice on campaign and lobby law, said he identified more than 100 bills in the current session that relate to open government and ethics.
Good-bye local control?
One of the most significant is SB 343, proposed by State Senator Don Huffines (R-Dallas), which would prohibit local governments from passing laws that are more stringent than or conflict with state laws. The bill is an example of a movement by a number of lawmakers opposed to local rules, such as Austin’s bans on plastic bags and distracted driving, that they believe conflict with statewide values.
Davis noted the apparent contradiction when conservative Republicans, who generally advocate for local control with regard to federal rules being applied to states, nevertheless support subordinating local control to state control. She indicated that the explanation was probably issue-related, rather than indicating a big shift on local control versus centralized control. “The general theme is that maybe there's too much going on at the local level that we don't like, so we need less local control,” Davis said.
Although Huffines’ bill is seen as primarily targeting local litter and public safety rules, Sorrells said its impact would be much larger. “It would have a big effect on not just environmental and other issues but also open government issues,” he said. The bill, which has been referred to the State Affairs Committee, is given a good chance of passage by Davis, based on support for the issue from Governor Greg Abbott and other state leaders.
Opening financial disclosures
A bill specifically targeting open records was introduced by State Senator Judith Zaffirini, (D-Laredo). SB 1437 would allow local governments to use software developed by the Texas Ethics Commission for filing campaign finance and personal financial disclosures. The legislation would enable a significant advance in the ability to citizens to access the information conveniently and anonymously.
Currently, personal financial statements are filed on paper, Davis said. Electronically filed statements would be significantly easier to obtain and analyze. Also, she noted, state laws says people who want to see a a candidate or officerholder’s personal financial statement must physically appear and fill out a request giving their names and who they represent. This requirement can have a chilling effect on citizens’ efforts to find out about a candidate or officerholder’s personal finances. “A lot of people don’t like the idea that they have to go in and put their name down so the elected official can see who they are,” Davis said.
Electronic filing of documents is a popular element in proposed legislation and so is candidate finances, Davis said. “Every session there are bills that deal with personal financial statements,” she said. Davis gives Zaffirini’s bill, which has been referred to State Affairs, a good chance of passing this session.
Move public official investigations
An additional proposal relating to ethics and openness is HB 1690, proposed by State Representative Phil King (R-Weatherford), which would remove authority to investigate public officials accused of corruption from the Travis County district attorney’s Public Integrity Unit. Instead, the Texas Rangers would investigate and refer these cases to an elected official's home county to be handled by the local prosecutor.
Davis and Sorrells expressed a number of reservations about the bill, as well as the similar SB 10 proposed by State Senator Joan Huffman (R-Houston). “It turns criminal venue on its head,” said Sorrells. “It creates a special class of criminal defendants for elected officials.”
Davis said that, aside from changing criminal procedures, the proposals would change the whole notion of what it means to have a Public Integrity Unit by injecting local politics into investigations. The concern, echoed by Sorrells, is that local prosecutors would be reluctant to investigate other elected officials from their community. The Public Integrity Unit proposals have been vigorously debated and, while the ultimate outcome is not yet clear, they have broad support in the legislature.
Most proposed changes incremental
Overall, the two ethics and open government experts said the state’s general trend is toward legislation requiring more open government. “I see fewer and fewer exclusions every session,” Davis said. “I see more and more transparency in every session.”
However, the transparency increases by small amounts rather than leaps and bounds. In response to a question about specific open government legislation, Davis pointed to proposals that would require police departments to apply for state funds to equip all officers with body cameras. But she added that, as is usually the case in a typical legislative session, there is little will to pass omnibus legislation on openness. “No major changes,” Davis said. “I guess that's the best way to answer your question.”
Related Bulldog coverage:
Want More Open Government? Key lawmaker and nonprofit advocacy group pitch for public support for pending legislation, March 19, 2015
Link: Video: 2015 Open Government Symposium: Legislative Developments