Can Philadelphia’s Ethics Board really being saying it’s okay for a city official to accept cash from somebody he can help? You might think the answers are “duh, of course not,” but the city Board of Ethics is finding that it’s not so simple as it struggles to come up with a policy on gifts city employees can accept.
Can Philadelphia’s Board of Ethics really being saying it’s okay for a city official to accept cash from somebody he can help?
What about a city food inspector taking a $20 bill from a Philadelphia restaurant owner?
Can a real estate lawyer buy a $25 department store gift card for a member of the zoning board?
You might think the answers are “duh, of course not,” but the city Board of Ethics is finding that it’s not so simple as it struggles to come up with a policy on gifts city employees can accept. And it’s work is proving controversial.
Tomorrow the ethics board will hold public comment on its proposed rule: City employees can accept up to $50 cash or up to $200 worth of things of value annually from people whose interests they might affect.
When the ethics board staff rolled the idea out at a meeting last month, the reaction from people like Ellen Kaplan of the watchdog group Committee of Seventy was, well, intense.
“To be setting a $200 financial threshold — and cash, my god, cash!” Kaplan told the board. “A city policy that allows cash payments?”
Well, yes. But there’s an explanation.
Why make new rules for gifts, anyway?
Here’s why: For years, city employees have asked the Board of Ethics for advice on gifts. Could they accept a meal, or a couple of Eagles tickets? The problem is that the ethics code is vague, prohibiting gifts of “substantial economic value” from someone whose interests the city employee could affect.
To clarify the policy, the ethics board studied the subject, looked what other cities and states do, talked to experts, and came up with its proposal for a $50 limit on gifts of cash or cash equivalents, like a gift card, and $200 a year in things of value from people who’s interests the employee could affect.
If that sounds lenient, the board’s executive director, Shane Creamer, says this subject is trickier than you might think.
“I’ve been looking at these gift rules for years since I’ve been in ethics, and one thing I learned early on that there is no perfect rule,” Creamer said. “There is no Goldilocks gift rule.”
Creamer said places like New York city which set very low limits for gifts have to have exceptions for gifts among friends, which gets messy.
“In Philadelphia, it’s the city of brotherly love, everybody’s a friend,” Creamer said. “So, If a government official is receiving a gift, naturally they can say this is my friend giving the gift, and if the board feels differently, that there is not a friendship, we’d have to prove that they are not friends.”
So the staff proposed simple rules with no exceptions: up to 50 bucks cash and $200 worth of other stuff is okay, as long as it isn’t in return for official favors.
The enforcer objects
At the ethics board meeting city Inspector General Amy Kurland argued the proposed rule would send a bad signal to city employees with daily regulatory responsibilities, like the plumbing inspectors she charged as a federal prosecutor a few years back.
“The plumbing inspectors, many of whom are still in jail, didn’t take $50. They took $10 or $20,” Kurland said. “And if that case was going to trial today, I think many of those plumbing inspectors would stand up and have as a defense, ‘Well the ethics board said it was okay, because it was less than $50.'”
Nope, Creamer says.
Those kinds of payments would violate a separate ban on gratuities in the city charter, which prohibits taking anything of value “for an act or omission in the course of one’s official duties.” So, he says, you can’t tip your trash collector, and a restaurant owner can’t tip a food inspector.
But, I asked Creamer, what if the restaurant owner says the twenty was simply a gift, because he knows the inspector as a good guy who works hard? To bring an enforcement action on that behavior, wouldn’t you have to prove the payment was for an act or omission on the inspector’s part?
Creamer said the board would have no trouble making a circumstantial case that the payment was connected to the inspector’s duties, because there would be no other reasonable explanation for it.
I should note that the payment to a food, building, or plumbing inspector is already banned under a separate executive order by Mayor Nutter, no matter what the Board of Ethics decides.
But critics of the board’s proposal say that’s irrelevant. The executive order can be changed by the next mayor, and if city officials see media accounts saying they can now accept cash, it will just confuse things.
Why on earth would you explicitly permit cash ‘gifts’?
The explanation here is that if they set the value of acceptable gifts at $200 and didn’t make a distinction for cash, the courts would interpret the rule as permitting cash gifts up to that amount. Setting a lower limit for cash is making it more restrictive.
If you spend time talking with the ethics board and their staff, you can tell they’ve spent a long time wrestling with this stuff, and are acting in good faith to set rules that are clear and enforceable.
Setting a rule that bans gifts altogether, or sets a very low limit with no exceptions, they say, would create problems. Can an official not take a birthday or wedding present? Can a City Council member not accept a couple of hockey tickets?
Suppose the board sets a low limit, but then uses its discretion to let little stuff slide and only prosecutes the bigger violations?
That’s trouble, Board of Ethics staff say. They’ll be accused of playing favorites in enforcement. And in a city where everyone suspects a political motive behind any prosecution, you want to have clear rules for enforcement. And if you start letting little things slide, people won’t take the rules seriously.
I’ll note that the ethics board itself is not of one mind on this. One member, Phyllis Beck, is a retired judge who believes a bright line is simple and easy to follow. “I was a public official, and I knew nobody could buy me a cup of coffee,” she said.
The board can’t impose a zero-dollar limit, because the existing code has a “substantial economic value” threshold, and the regulations are designed to clarify that standard. Beck thinks a $50 limit would do the trick.
Ellen Kaplan of the Committee of Seventy says giving a green light to cash payments of any kind to any city official is just inviting trouble. She wonders how Philadelphia will look if the proposed rules are adopted.
“I think people are going to be look at this city and saying, ‘What??’” she said. “And we’ve already had enough of that here.”
The ethics board will hear public comments on the proposed rules Wednesday. The staff will then prepare a report for the board, which may adopt the rules or an amended version of them at a future meeting.