Ethical dilemma

Less than three years after a powerful Virginia legislator was convicted of bribery and extortion, ethics reform has again been thrust onto Virginia’s legislative center stage.

Revelations of more than $160,000 in gifts and loans to Gov. Bob McDonnell and his family from the former head of a dietary supplement company have overshadowed the popular Republican governor’s final year in office.  McDonnell has apologized for embarrassing the state but says he hasn’t broken any laws or provided any favors to Jonnie Williams when Williams was CEO of Star Scientific. He has faced state and federal investigations into his relationship with the businessman, neither of which had concluded by the time this issue went to press.

The scandal — known colloquially as “Giftgate” — has shone a spotlight on Virginia’s ethics laws, which are among the weakest in the nation. That means ethics reform is likely to be a hot topic in this year’s General Assembly session and one issue where Democrats and Republicans can find common ground.

“There’s widespread agreement among my colleagues that we should be addressing ethics and financial reporting this legislative session,” says Sen. Adam Ebbin, D-Alexandria, who is working with a bipartisan group of senators to craft a bill to address ethics concerns. “Among the most important reasons to do that is to maintain and improve public confidence in the ethical behavior of elected officials.”

Round 2

Virginia legislators went down this road not long ago.

In summer 2009, Virginia newspapers revealed emails showing that Republican Del. Phil Hamilton of Newport News sought a job at Old Dominion University while he was seeking state funding for a teacher training center there.

A House of Delegates ethics panel began an investigation, but it was closed when Hamilton resigned after his November 2009 election loss to former Del. Robin Abbott.
Hamilton’s resignation, however, did not stop a federal probe. In August 2011, he was convicted of extortion and bribery and sentenced to 9.5 years in prison.
The ordeal resulted in a flood of legislation to address everything from legislators’ ability to accept gifts to how long lawmakers had to wait after leaving elected office until they could become lobbyists. “There was a lot of interest in doing some reform then,” says Megan Rhyne, executive director of the Virginia Coalition for Open Government. “They did indeed make some reform, but those were modest changes.”

In the end, lawmakers passed legislation that requires investigations of the House and Senate ethics panels to continue even after a member resigns. It also required the panels’ meetings to be open to the public after a preliminary investigation and required legislators to disclose income above $10,000 from government and state entities.

Will ethics reform go any further this time around?

It depends, says John McGlennon, professor of government at the College of William & Mary. “The General Assembly is certainly going to see some legislation filed to tighten up rules on ethics, but whether anything emerges at the end of the day is very much an open question,” says McGlennon.

On one hand, Gov.-elect Terry McAuliffe has taken the lead, saying that his first executive order will be to limit the value of gifts he, his family and members of the executive branch can receive to $100. However, lawmakers don’t face voters for another two years, and the ethics issue doesn’t seem to have resonated much with the public. “A lot of people thought it would have taken a greater toll on the governor’s approval ratings,” says McGlennon.
If charges are brought against McDonnell during the upcoming General Assembly session, he says, lawmakers would be under more pressure to pass stricter ethics bills.

At press time, Ebbin says the legislators he’s working with still were ironing out details on what would be included in an ethics reform bill. Ebbin did say he thought the bill would address disclosure of gifts to family members.

Del. Bob Marshall, R-Prince William County, already has introduced two ethics-related bills. One would create a subcommittee to study the adequacy of Virginia’s ethics laws. The other would require the disclosure of gifts of more than $100 to immediate family members if received from an individual or entity that has done business with Virginia in the past year.

McAuliffe supports more stringent measures. He wants to see a limit on gifts public officials can receive, increased penalties for violations of ethics laws and the creation of an independent ethics panel. “I don’t want to punish innocent behavior,” McAuliffe says, “but we should always come down on the side of eliminating potential conflicts of interest.”

Why the weak laws?

When it comes to ethics, Virginia has some of the weakest laws in the country.

In 2012, Virginia ranked 47th out of 50 states on the State Integrity Investigation, a project of the Center for Public Integrity, Global Integrity and Public Radio International. The project measured each state’s laws and practices that promote accountability and openness and prevent corruption.

Virginia received a score of 55, or an F, receiving extremely low points for its ethics enforcement mechanisms and public access to information.

The commonwealth is one of only nine states without an ethics commission and one of four states that have no campaign finance limits, according to the report. There are no limits on gifts elected officials can receive, but they must disclose any gifts worth more than $50, or cumulative gifts from an individual that exceed $100. Gifts to family members, however, are exempt from disclosure requirements. Lobbyists also are required to report any gifts to legislators over $25, although disclosure forms ask for gifts of more than $50.

Virginia’s lax laws partly come from a belief that most legislators are acting ethically — that the commonwealth doesn’t face the same problems as Illinois, where four governors have gone to prison.

Another big factor in Virginia’s weak laws is the commonwealth’s short legislative session and the part-time status of lawmakers. Virginia’s legislators earn relatively little ($17,640 annually for delegates and $18,000 for state senators), and strict laws unintentionally could limit business interactions in their full-time jobs, says McGlennon.

“So that combination of factors makes it easier to justify not imposing strict limits on the financial activities of legislators.”

Finding balance
 

A major obstacle to ethics reform for legislatures is the ability to find the right balance — creating laws that effectively address wrongdoing by elected officials but don’t punish innocent behavior or create unintended consequences.

“I also think that we need to be careful what we do, that we don’t have happen in Virginia what has happened in Washington,” Ben Dendy, president of Richmond-based lobbying firm Vectre Corp., said during a Virginia Business panel discussion in November. Lobbyists now are barred from taking a congressman or senator out to eat, so now only campaign donors can entertain federal lawmakers. “I think we need to be careful not to have everything in Virginia move from any opportunity to entertain and talk to legislators, go to dinner with them, unless you make a political contribution.”

Concerns about overreach in the wake of the Hamilton scandal prevented further reform from being passed. “There’s a real challenge in finding the right balance,” says McGlennon. “Obviously there are some things legislators do that are just part of their normal job.”

McGlennon points out that in states with stringent limits on gifts to legislators, it can be easy for a politician to violate the law — say at an event where food and drink are served — even if nothing nefarious has happened.

“I think that ideally Virginia would look to other states to see what has and hasn’t worked effectively,” says McGlennon.