“Ethics” and the Upcoming Montgomery County Commissioners’ Race

As the 2011 county political campaign limps out of the gate, it’s worth noting that “ethics” is a word that inevitably shakes things up at the courthouse and county offices in Norristown. To be sure, it’s not the weightiness of the debate on policy innovations and the principles that underlie them that echo through the eighth floor board room at One Montgomery Plaza when the “e” word strikes. Not by a long shot.

The catalyst for the long-simmering ethics controversy – and those periodic rhetorical convulsions – has been a series of ho-hum proposals engineered by Commissioner Joe Hoeffel in early 2009 and passed by the Matthews-Hoeffel ruling bipartisan board coalition more than two years ago as Ordinance 09-1. The issue may still be live ammo for the 2011 campaign season.

Last week’s PA Supreme Court decision, the result of suits filed by District Attorney Risa Vetri Ferman and the county sheriff’s office has settled the ethics question for the moment, but it’s not one likely to go away – or at least shouldn ‘t. The court ruled in a one-liner, siding with the lower courts, that the Montgomery County Board of Commissioners overstepped its bounds in requiring that row officers (other county elected officials) be subject to three constraints for certain upper level employees: 1) they cannot run for office other than school board; 2) they cannot manage political campaigns; and 3) they cannot fundraise or recruit fundraisers for campaigns. However, the constraints stay in place for employees under the direct oversight of the commissioners.

The ostensible rationale for the restrictions, articulated by Hoeffel and endorsed by Chairman Jim Matthews, was to limit political activity by “sensitive employees” – a term from the state ethics code – “to avoid conflicts of interest, and the appearance of conflicts, between the public duties of employees and any personal political activities.” While it sounds innocuous enough – designed to protect employees from political bullying from superiors – it had unmistakable implications that Republican Commissioner Bruce Castor and his party were quick to seize upon.

By including in the proposal the staff of row officers, which covers the county district attorney’s office, major political fall-out was assured. The DA’s office, long a key launching pad for Republican political careers, was going to be neutralized by the equivalent of a legislative surgical strike. Note that if the law had been in place, Castor as an assistant district attorney could not have run for DA, nor could his successor and current DA, Risa Vetri Ferman, who was elected in 2007, when Castor took his seat on the board. Both are prominent Republicans considered solid prospects for higher office whose political start-ups would have been undermined, if not scuttled, by the ethics law. Another example of its political weight is that of Rep. Todd Stevens (R-151st), who won his seat in his second try in 2010 in a bitterly contested race against incumbent Rick Taylor from his perch as an Assistant DA. Suffice is to say, the list of political careers and judgeships (Is there a difference?) hatched in the Montco DA’s office is long.

Hoeffel and Matthews have always maintained that the rules were politically neutral.

What to make of the bureaucratic rules themselves and more importantly, their likely impact on the potential of corruption or favoritism on jobs and lucrative contracts in county government? Small to none, although they may well add some cover for vulnerable employees caught in the political crossfire.

Castor has taken the point a provocative step or two further. Last year he questioned the legitimacy of the roles of County Solicitor Barry Miller and Human Resources Director Eleanor Schneider, given their close associations with Castor’s arch-enemy, Board Chairman Matthews. As Solicitor, Miller is legal advisor and head attorney for the county, while Schneider, who once worked as Matthews’ personal secretary, heads employee recruitment and related policies and programs. Miller was also Matthews’ campaign treasurer.

“This is not an ethics policy. It’s a Hoeffel-Matthews corruption policy,” Castor said back in 2009. In March, 2010 he reportedly said: “The guy handing out the contracts (referring to Miller) is the guy collecting the contributions to Matthews’ campaign (Matthews ultimately declined to run in 2011). The gal doing the hiring (referring to Schneider) . . . is signing the checks for Matthews’ car and credit cards. Anyone dealing with the county knows this. It is only natural that contract seekers and job applicants think their chances would improve with a contribution to Matthews. That appearance is what the ethics policy should address. If it doesn’t, the policy is worthless.”

Strong words. But there are other components of the ethics law that directly address the level of openness and transparency in county government, which, it seems safe to assume, can mitigate potential abuses. The county is required to post all campaign contribution filings for candidates for county office and publish employee financial disclosure statements required under PA ethics law. An ethics advisory board was also mandated to make recommendations to the board on the updating and enforcement of county ethics policies.

If there was a message of renewed vigilance underlying the ethics law, it was arguably tarnished when it came to light at the end of March of last year that campaign filings still had not been put online. Not surprisingly, this also provoked further skirmishing on the “e-word.” More recently, the commissioners acknowledged that the ethics advisory board also had not been appointed. Campaign finance reports have been posted for about a year now, and the newly appointed ethics board, comprised of state Rep. Raymond Bunt, Jr.(R-147th) and attorney Andrew B. Cantor, a Democrat, is slated to make its first report in the fall.

“Pay-to-play,” shorthand for the concept of making campaign contributions in exchange for favorable consideration for government contracts, is an area of concern at the heart of accountable government and ethics reform. One of its diciest areas is that of professional services, where competitively bid contracts are not required by state law. Lawyers, engineers, architects, financial professionals, especially those whose work may include a variety of roles in government bond offerings, and other specialists fall into this category.

A 1998 ordinance required that all professionals wanting to do business with the county submit a statement of qualifications, expertise and fees. At that point, they were to have been added to a list of contractors in various categories and when work was needed, at least five of those on the list were supposed to be sent request-for-proposals (RFPs), to which they could respond. One of the five was then selected.

But apparently the ordinance was rarely followed. In February 2010, Commissioner Castor charged that the county was violating the ordinance when it did not solicit proposals for bond counsel on a $35 million open space borrowing. Instead, the county typically compiled and updated lists of professionals, from which contractors were selected by commissioners’ staff. A month later, the board majority of Matthews and Hoeffel repealed the ordinance and passed a new law requiring contract awards be voted directly by the commissioners, along with a diluted RFP requirement. The law also stipulated that no existing contracts could be rendered invalid as a result of a failure to comply with the old law.

What will the role of “ethics” be in the upcoming election campaign?

First, Commissioner Hoeffel, who is not running for re-election, sees the possibility of additional reforms passed prior to the election. He told Citizens’ Call ,”The time to pass good government reform can be just before elections.” He pointed to the county’s Ethics Advisory Board’s September, 2011 report as a possible impetus for action and suggested a stronger enforcement mechanism, such as an inspector general. He’d also like to see “more openness and transparency,” such as the posting of all county ordinances online. He also suggested that rules on lobbying “is something we should look at.” Currently, there are no lobbyist disclosure requirements and no limits on gifts to officials. He’d like to see changes in those areas. Summing up, he said, “I’m in favor of more ethics and less political activity in the courthouse.”

Castor, who is running for reelection heading a countywide ticket with Lower Merion Commissioner Jenny Brown, has a dramatically different philosophy, yet his views overlap somewhat with Hoeffel’s.

“Beware of ANY law that purports to toughen existing state law. It will always be about politics and never about good government,” he said in emailed replies to a series of questions on public accountability and ethics.

“Our expenditures, ordinances, contracts, etc. should all be online and searchable. It should be easy for people to know what the county government is spending money on and the laws it passes. There are state laws governing ethics and competition in bidding. We should follow them to the letter . . . I am very hesitant to pass new county laws. We should make public information readily available and easy to search. We should enforce existing state laws. And we should operate in a fiscally prudent manor.”

On the question of lobbying rules, Castor suggests holding public hearings. Regarding an independent anti-corruption enforcement mechanism, Castor said, “There already is. The controller and the DA . . . Any inspector general would be an employee of the commissioners and thus by definition NOT independent.”

Castor also alleges that “A grand jury is investigating whether the government was run in secret to the benefit of campaign contributors, and whether one of the commissioners used money from those benefiting from the county to pay his living expenses. We need to get back on our financial feet. And above all, we need honest commissioners.”

Candidates on the Democratic ticket for county commissioner, state Rep. Josh Shapiro (D-153rd) and Whitemarsh Supervisor Leslie Richards, responded to the questions from Citizens’ Call with their emailed statement on the PA Supreme Court decision on the Montgomery County ethics law:

“We believe Montgomery County government needs more reform–not less. As Commissioners we will work in a collaborative manner with County officeholders and staff to ensure that our county government is more open, transparent and fiscally responsible. We have long track records in state and local government of fighting for and passing real reform. We will bring that same commitment to county government.”

There’s plenty of unfinished business when it comes to reforms at the courthouse. It will be interesting to see how much constructive debate there is on these and other issues during the campaign. You could call that public ethics question number 1.