Members of the House Government Operations Committee,
Through Campaign for Vermont, I have been working with the Administration and Legislature since 2015 to encourage the passage and strengthening of ethics laws in Vermont. Today I am writing because you are beginning to take testimony on S.171. I know this bill may be confusing in how it interrelates with existing rules, policies, and practices across different branches of government. It is not always easy to step back and see the broader picture of how these all tie together.
We support this legislation covering all three branches of state government because it provides Vermonters with a universal set of expectations for the way public officials conduct themselves. We believe the public deserves standards that can be articulated clearly and applied to everyone in public service.
Our state is only one of five in the country without a statutory code of ethics. This is a modest set of standards that all public officials should be able to adhere to. Most states have gone much further than what is being proposed here. However, this is a step in the right direction that will help to build the public’s confidence in our public institutions.
There are a few key points in the bill that we want to emphasize:
All three branches of government should be included. We recognize there will be some overlap with existing rules in the judiciary and in the legislature, but this not unique to Vermont. The judiciary has, on-average, a stronger set of rules than what is being proposed here. That is expected for those in certain departments, roles, or occupations. For example, a regulator in DFR will have more stringent rules around financial conflicts than someone in AHS, and that is appropriate.
Legislators will have campaign finance laws that others will not have, and their legislative duties will be governed by their respective legislative body. All of these are reasonable implementations of a universal code of ethics that dozens of other states have passed. Exempting any one branch undermines the purpose of having a universal code of ethics and calls into question the integrity of officials serving in that branch.
In most cases, specific department or professional rules relating to an employees occupation will not overlap with the Code of Ethics; professional rules focus on conflicts that arise from an employee’s occupation whereas the Code of Ethics focuses on conflicts that arise from public employment. However, in cases where they do overlap, whichever rule is more strict is the one that should be followed.
Boards and Commissions. We believe strongly that all boards and commissions should fall under the jurisdiction of this code of ethics. Investigating this issue we found an apparent gap in the existing rules - it appears that only board and commission members nominated or appointed by the Governor are subject to the executive order (EO) on ethics. This means that there are roughly 180 boards or commission that have at least one member subject to this standard, but other members of the same panel are not. This potential disparity exists today and would be remedied by this bill.
Enforcement. Ultimately, we would like to see an accountability mechanism attached to our ethics laws. That is not included in this bill (nor should it be at this point), but it is important to take this opportunity to evaluate the process in the absence of an enforcement mechanism.
We recommend the Committee ask the Ethics Commission and all three branches of state government to come back in a couple years to provide feedback on how the process laid out in this bill is working.
The process this bill is asking for is a simple recusal where a public official has decision-making authority over a matter where they may be conflicted. If the public official does not believe the apparent conflict rises to the level of a real conflict or that it will not impact their decision-making ability, they can file a written statement and proceed as they otherwise would.
The Ethics Commission has a one-page draft of such a statement which can be shared with the Committee. It is a good example of how this might be implemented.
We would note that, under this bill, the consequences of a potential violation of this code are no greater than the existing penalties in place. If the Commission finds that someone has violated the Code of Ethics it would be dependent upon the branch of jurisdiction to take action to correct that wrong. The Commission has no authority to act unilaterally under this bill and all three branches have procedures to handle these sorts of issues.
This would also be a good time to reiterate that separation of powers is really a (potential) enforcement issue. The code of ethics can apply universally, but we believe that any concerns raised around separation of powers really encompass who is enforcing that code, not the applicability of the code itself. That is an issue for another time.
At the end of the day, accountability and transparency protects public officials acting in good faith and preserves the public’s faith in the integrity of our government. A win-win.
Campaign for Vermont
CC: P. A. McDonald
President, Campaign for Vermont