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Monday, August 18, 2014

Ind. Gov't. - Do waivers make the state ethics rules meaningless, or unfair?

Two big stories this weekend on the state's ethics rules.

Ryan Sabalow of the Indianapolis Star has a long, front-page, Sunday Star story headed: "Officials defend exceptions to Indiana ethics rules that were meant to prevent conflicts of interest." Some quotes:

Eight months had passed since Paul Dubenetzky retired from his state job as head of Indiana’s air-quality permit program to work for a consulting firm representing some of the region’s largest polluters.

And he knew he had a problem.

The state’s ethics laws require that former state employees take at least a year off before working as a lobbyist or going to work for companies they once regulated. His former peers at IDEM knew the rules and they were unnerved by his new job.

Dubenetzky acknowledged as much in a letter he wrote in May 2007 to his former boss, IDEM Commissioner Thomas Easterly — a letter written on his new firm’s stationery: “Several current IDEM employees have expressed discomfort when discussing issues with me because they feel that they may be participating in activities that do not comply with the legal requirements regarding ethics and conflicts of interest.”

But Dubenetzky’s concern quickly went away, thanks to an exception in Indiana that allows public employees to circumvent the state’s cooling-off period. That exception: Ask your former boss, in this case Easterly, to grant you a waiver.

In Indiana, the waiver is binding and does not require the approval of the state’s ethics commission. It also didn’t matter that it was issued months after the fact.

Easterly placed a condition in the waiver — that Dubentizky was not to speak to IDEM staffers for a few months — but he was otherwise good to go.

Easterly defended the waiver in a statement to The Star:

“Paul is a very competent professional with extensive experience in environmental issues,” Easterly said in his statement. “And it is to Indiana’s benefit to have individuals like him out there helping regulated operations meet their responsibilities.”

Dubenetzky did not comment other than to say he didn’t think his case was on point with concerns some might have about a revolving door between state employees and industry.

The waiver — again, even the retroactive nature of it — was completely within the rules. But ethics and good government experts contacted by The Star were concerned with what they viewed as a loophole in a law intended to keep state employees from using insider knowledge to work against taxpayer interests. The rules also intend to prevent companies and special interest groups from dangling jobs before public officials in order to win lucrative government contracts, push through pet projects and ease regulations.

And while Dubenetzky’s retroactive waiver was unique, waivers, in general, are not.

An Indianapolis Star investigation reveals that waivers have been issued 102 times since 2005. By comparison, state employees, concerned about potential conflicts with job prospects, have only sought formal, binding advisory opinions from the ethics commission 73 times during those years. * * *

The state’s top ethics policeman, Inspector General David Thomas, who has announced he would be leaving office by December, largely defended the ethics laws, including the waiver exception.

Before 2005, the only restriction for state employees seeking a new job was a one-year ban on working on “particular matters” in which employees had gained insider knowledge. Thomas said the lifetime ban came in 2005. So did the one-year cooling-off period for lobbying and for employees who made more general regulatory decisions related to an organization or company.

The story continues with a number of examples of waivers granted.

"State’s revolving door turning ‘judiciously’"
is the headline to Niki Kelly's story in the Sunday Fort Wayne Journal Gazette. Some quotes:
INDIANAPOLIS – Indiana ethics law seeks to stop the revolving door between state workers and companies that benefit from state contracts – unless you get a waiver.

Post-employment waivers can be granted by the head of an agency – or the governor himself – in order to avoid a one-year cooling-off period.

Twenty such waivers were granted in 2013 and eight so far this year.

“Post-employment waivers are being used judiciously – with about 100 given over the nearly 10 years since they were included in the state’s ethics law. That pace continues to be about the same in the Pence administration,” said Christy Denault, spokeswoman for Gov. Mike Pence. “Post-employment waivers allow agency heads to waive a one-year restriction for employees when it is in the public interest to do so.”

During that time, tens of thousands of state workers have left state employment.

Waivers must be filed with the Indiana Ethics Commission, though that board can’t block them.

Inspector General David Thomas – the state’s watchdog on ethics, waste and fraud – said he thinks the current law is good for two reasons.

“First, the agency is in the better position to know the detailed extent of their employee’s involvement and whether the ‘public interest’ is served with the waiver. Second, I think the law is sufficient in that the waiver must be in writing and remain a public document,” he said.

Thomas said having waivers helps defend against a future attack like in Ohio, when the entire post-employment rule was struck down as unconstitutionally strict.

Denault said there is no obligation in the law, but the governor’s office requires all waivers to come there for approval before being issued. Some agencies have not complied with the rule, according to a July 29 memo from the governor’s office to agency heads.

That same memo reminded agencies: “Appearance and public trust matter. If you, as an appointing authority, think reasonable people would view the new employment for a former employee as somehow having influenced the employee in job duties – Do not execute a waiver.”

The long story continues with a number of examples, and concludes:
[Christy] Denault, the governor’s spokeswoman, said another waiver allowed an employee of the Department of Natural Resources to work with the Nature Conservancy.

“These are the kinds of employment opportunities that the law envisioned in allowing for waivers: positions that employees of the state are well-qualified for and that are in the public interest,” she said.

Posted by Marcia Oddi on August 18, 2014 11:32 AM
Posted to Indiana Government