Can the Philadelphia Ethics Board adopt a rule that seems to let city employees accept cash gifts? Would it let a zoning board member accept a nice watch from a real estate lawyer? Will the city’s top ethics officials be scratching each others’ eyes out before Christmas?
The battle over the Ethics Board’s attempt to clarify rules about gifts city employees may accept has escalated in recent weeks, with Mayor Nutter warning in a letter that the board’s proposal would permit “unfathomable and egregious scenarios.”
This is strange. Some of my favorite people in public life, the folks who bust their butts every day trying to clean up politics and government are bitterly divided on this.
The Ethics board’s staff has proposed a rule that would permit a city employee to accept up to $100 worth of things of value, like meals or tickets, and up to $25 dollars in cash or cash equivalents, like a gift card from people whose interests the employee could affect, as long as they’re not in return for official favors.
To which ethics watchdogs respond, “Say what? Cash?“
“I can’t think of a single instance where it’s okay to give cash to a city employee,” city Chief Integrity Office Joan Markman told me Friday.
The Ethics Board isn’t saying it’s okay, only that it’s already legal under city law for employees to accept cash, and their proposed rule would limit the amount. But let’s back up a moment.
How did I get here?
The Ethics Board often gets asked to provide guidance to city employees who wonder if it’s okay to let someone buy them a nice lunch, or a couple of Eagles tickets, or a holiday basket.
The board faces a problem here, because the standard in the existing city ethics code is vague – a gift of “substantial economic value.” You can argue that the board doesn’t need a dollar figure here. It can use its judgment – substantial economic value might mean different things to different people, and the context of the gift should be considered.
Prosecutors use discretion every day. The Ethics Board can, too.
The problem with that approach is that it puts the Ethics Board’s staff in a tricky spot. When they decide not to pursue a complaint about a gift to Councilman A, but open a full-blown investigation into Councilwoman B’s legislative aide, they get accused of playing favorites, and playing politics.
A lot of folks, including our own Chris Satullo say the best rule is a simple one: you don’t take nuthin’ from nobody who’s interests you can affect.
As a rule of personal conduct that makes sense, but the current Ethics Code simply doesn’t permit such a standard. In fact, Mayor Nutter’s own law department advised the Ethics Board that unless the law is changed, it doesn’t believe the board could adopt a limit on cash gifts any lower than $25.
Why would the board explicitly allow any cash gifts?
Because if you don’t set a number for cash, then under existing law the standards for the value of all gifts would apply to cash. If a $50 dinner is permissible, so is a $50 bill.
So the $25 limit for cash gifts restricts, rather than expands the leeway for giving.
The Ethics Board staff, by the way looked into gifts standards all over the country, and found that jurisdictions with zero gift rules have to include various exceptions which often permit back-door gifts of enormous value.
When I listen the Ethics Board staff talk about what they’ve done (as you can in the documents linked below), the proposed rules make a lot of sense.
But it unnerves the other watchdogs – the Committee of Seventy, the city’s inspector general, and its chief inspector general – to hear anything about an acceptable cash gift.
Even if the existing law permits larger cash gifts, and even if a zero limit is impermissible under existing law, they argue, enacting the proposed rule would only confuse people.
There are times when perception overtakes reality, and it could be that the regulations make sense, but that their adoption will create the misimpression that it’s somehow okay now to take cash, a misimpression ironically created by those who are horrified by it.
The critics say we should change the ethics law to forbid cash gifts, and in the meantime we’re better off doing nothing than adopting the proposed regulation.
But it’s interesting that former Ethics Board chairman Richard Glazer testified in the hearing that in the four years he was there the board got at least 50 requests for advice from city employees who weren’t clear about what is or isn’t an acceptable gift.
So the board had a reason for trying to clarify the rules.
At the last Ethics Board meeting it was agreed the staff would try to get City Council to change the code so that cash gifts are outlawed, and city employees are explicitly barred from soliciting gifts.
Good idea. We’ll see how that goes.
More on the gifts policy debate
You can get many of the parties’ opinions in their own words by reading the transcript of the public hearing on an earlier version of the rule here. You can read the Ethics Board staff’s response to the public comment here. And you can read Mayor Nutter’s letter to the Ethics Board here.