Changing the way Maine does business (continued)

Bangor’s assistant city attorney, John Hamer, believes his city’s code heads off a lot of problems at the ethical pass, and thus rarely do problems arise: "Having the ordinance sets a good guideline, and to that extent it has been successful." Bangor’s code, chapter 33 of its ordinances, is on line at www.bangormaine.gov.

In Auburn, according to city counsel Jack Conway, the ethics board recently dealt with a councilor’s relationship with a development company that benefited from a city action. The councilor was an attorney, and one of his firm’s lawyers had a business relationship with the developer, and the ethics board determined that no conflict of interest existed, he says.

"It worked pretty well in that instance," he feels of the city’s code, although the ethics board had to be reconstituted to deal with the issue since some of its members had conflicts of interest "because of the prominence of the councilor and the developer." This sort of conflict, he notes, is typical of small cities, but Auburn’s experience shows it can be dealt with.

When we described to Conway and Hamer a hypothetical situation like that of Mayor Dowling’s in Augusta, both felt their codes of ethics would have prevented a city official from working within city government to help secure a city grant for his business.

A model ethics ordinance has been written by the International Municipal Lawyers Association (IMLA) and can be found at the Georgia Municipal Association’s Web site (www.gmanet.com/data/word/ethics.imla.doc). The Georgia association certifies cities that adopt ordinances like the IMLA’s as "Cities of Ethics." The idea is to "help bolster public confidence in local government," according to the group. "How many times have you heard someone say in reference to public officials: ‘You can’t trust them. They’re all a bunch of crooks,’ " asks, rhetorically, the Georgia Municipal Association’s executive director in a posted message.

But the Maine Municipal Association (MMA) seems less concerned about municipal codes of ethics.

"Nothing in state law requires a city to have one," says Chuck Jackson, an MMA lawyer. The group does not have a model ordinance that it promotes, although "whenever a municipality asks us, we provide information," he says.

In the wake of the publicity over Dowling’s activities, however, a couple of Augusta city councilors have expressed an interest in such an ordinance.

"I think we should have an ethics code," says new councilor David Gomeau. "It shines the light on everything."

"I would be glad to take a look at it and see if it would be something the council wants to have," says veteran councilor Sylvia Lund.

AN ANTI-"PAY TO PLAY" LAW

The reality or perception of favoritism in the awarding of state contracts, which was discussed in Part Two of our series, is in some states addressed by something called a "pay to play" law. Such a law often relies on a disclosure requirement for lobbyists for state contracts, and this requirement frequently is tied to another, stricter one: the prevention or limitation of political contributions by government contractors and people associated with them to officials who are or could be involved in decisions on contracts. The phrase "play to pay" refers to worst-case situations where contractors to a governmental unit have to "pay" in campaign contributions in order to be a player in securing contracts.

New Jersey recently enacted the strongest "pay to play" legislation in the country. The law prohibits the award of state contracts of more than $17,500 to businesses and individuals that have contributed to state or county political committees or gubernatorial candidates. (The New Jersey law is on the Web at http://www.njleg.state.nj.us. Its number is A1500.)

"It was sort of how business was done in New Jersey," says Heather Taylor, New Jersey Common Cause’s communications director, of the "pay to play" system. Now, she says, the reform "severs that link between the campaign contribution and the contract."

The new law not only deals with the grubby reality of the pay-to-play world, it deals with the perception that contracts are for sale, resulting in greater trust in government. "People don’t have to second-guess" government decisions, Taylor says.

The New Jersey branch of Common Cause was the leader of an unusual coalition that pushed for the bill over several years. The coalition included, Taylor says, the Sierra Club, the New Jersey Public Interest Research Group (PIRG), the New Jersey Conservative Party, and the state’s chamber of commerce.

A handful of other states have weaker "pay to play" laws. Several state legislatures are considering them as well as a number of big-city governments including New York, Chicago, and Los Angeles. On the federal level, the Securities and Exchange Commission has for over 10 years banned stock and bond dealers from contributing to the campaigns of officials who issue securities. New Jersey Democratic Senator Jon Corzine is introducing a federal pay-to-play bill in Congress.

There is an increasing interest in "pay to play" laws in states around the country "and their important role in ensuring confidence in the way government works," Chellie Pingree says.

In 2003, the Maine legislature took a small step toward similar reform by passing a law that requires legislators to file a disclosure statement if they or their companies bid on state contracts, and in most instances they are forbidden from getting contracts except through competitive bidding.

But some state officials do not exactly embrace anti-"pay to play" reforms.

"I think the administrative burden would be huge," says Elaine Clark, the Bureau of General Services head, who is in charge of state office-space contracts.

Her boss, Baldacci’s commissioner of administrative and financial services, Rebecca Wyke, responds in an email: "While such a law would appear to serve the public good, it would also likely limit the field of bidders and therefore may impact the State’s ability to achieve other goals established for the procurement process which also serve the public good — including best value."

But Kevin Mattson, president of Harper’s Development, seems enthusiastic. Pay-to-play reform would dispel the kind of suspicion that has fallen over his company, he suggests.

"I’d be more than happy to be prohibited from giving money," he says. "It only makes sense. I’m a big proponent of clean elections. It’s a great idea."

(In a pending case, the state ethics commission director has recommended that the commission find Mattson in violation of the campaign-finance laws for giving excess contributions to a legislative candidate.)

"It’s the good-old-boys business state," recently grumbled Mark Warren, a Gardiner landlord who lost out to Harper’s in a bid to rent space to the state.

Is Warren correct or just disgruntled? Either way, anti-"pay to play" legislation and a municipal code of ethics might go a long way to solve the Insider Problem, real and perceived.

Lance Tapley can be reached at ltapley@prexar.com