If you keep track of blog comments, you may have noticed that some folks strongly disagreed with my post here on Friday (“Ethics law doesn’t support complaint against Rep. Luke“).
Here’s a comment that came in yesterday:
Ian, please take a look at the House Rules, pages 49-51 (rules 60.2, 60.4(1) and (6), 60.5, 60.6.
Fair enough. Rule 60.5 seems to be the most directly on point. It reads:
60.5. If the member has a conflict of interest in legislation, the member shall disclose to the presiding officer (the committee chair or the Speaker, depending on where the vote is taking place) the conflict of interest prior to voting on that legislation. For the purposes of this rule, a “conflict of interest” means that the legislation affects the member’s direct personal, familial, or financial interest except if the member, or the member’s relative, is part of a class of people affected by the legislation.
The caveat is important. Interests are unavoidable and obviously not undesirable. We typically gravitate towards elected officials who share our own interests, and we hope–sometimes demand–that they represent those interests. On the other hand, we oppose those who reflect different interests. That doesn’t make their interests illegal.
What creates a conflict of interest between for a legislator is when he or she takes action on matters that impacts a private financial interest in a manner more direct than its effect on others in similar positions. So legislators don’t face conflicts when considering tax legislation simply because they are taxpayers. However, if they were considering a tax break that would benefit only a specific company in which they have a financial interest, that would be a different story.
This is a common way of looking at conflict of interest. The conflict must be direct and not simply the result of being part of a class of people or businesses that are impacted.
Here’s a table showing the definitions of conflict of interest in the 50 states.
No, I haven’t read and digested all of them. But I started at the top, and it’s clear that the House rules are right in the mainstream.
For example, Alabama:
A conflict of interest involves any action, inaction, or decision by a public official or public employee in the discharge of his or her official duties which would materially affect his or her financial interest or those of his or her family members or any business with which the person is associated in a manner different from the manner it affects the other members of the class to which he or she belongs.
Unless required by the Uniform Rules of the Alaska State Legislature, a legislator may not vote on a question if the legislator has an equity or ownership interest in a business, investment, real property, lease, or other enterprise if the interest is substantial and the effect on that interest of the action to be voted on is greater than the effect on a substantial class of persons to which the legislator belongs as a member of a profession, occupation, industry, or region…
Arizona is much the same.
A personal financial interest exists if it is reasonably foreseeable that an action in the discharge of his official duties will have a material financial benefit or detriment either directly or indirectly on the member, his spouse or any minor child of whom he has legal custody, except that no personal financial interest exists if the legislator or such member of his household is a member of a class of persons and it reasonably appears that a majority of the total membership of that class is to be affected by such action.
As I said earlier, I haven’t seen the actual complaint filed against Rep. Luke, so don’t know the specific allegations except as reported in the news. Those reports have pointed to her private employment as a personal injury attorney, but have not alleged that her practice would be impacted differently than all the other personal interest lawyers practicing in Hawaii. Hence, no conflict as defined by House rules.
I have to repeat the underlying point that it’s a mistake to view legislation as tainted if it reflects interests of particular legislators short of the direct conflicts that would set them apart from the “class” of people impacted by the legislation. It’s not illegitimate for legislators to see things from their own experience, colored by their education, training, work experience, neighborhood, voluntary associations, etc. We may oppose them because our interests are different. Sorting out those differences is what politics is all about, isn’t it?
And it should not be forgotten that strange things happen to bills heading into conference for various reasons. Sometimes its a matter of bargaining. A chair might take a bill with lots of support, and make it a bargaining chip in conference, something to be threatened in order to gain leverage on another bill, for example. Just a thought, although I don’t have any insider knowledge about the specific bill at issue.