Ethics, Schmethics, Virginia Is For the Corrupt

It isn’t politicians alone. Commercial media never called out a horribly flawed Governor and Attorney General. Less than two dozen citizens showed up for a public forum on ethics. And the newspaper that hosted that event obscured references to specific instances of malfeasance. Truth is, it’s always open season here.

Monday, the outgoing Lieutenant Governor issued a memorandum he penned proposing changes to existing ethics standards. Where was he when it was revealed that his fellow Republican statewide office-holders violated the very standards he proposes? Or anytime during his almost two decades in the Senate chamber? Wednesday members of the House of Delegates offered up what was termed a “sweeping bipartisan ethics reform agreement.” The only thing it sweeps is the issue under the carpet. I am ashamed it’s called bipartisan. And consistently the media has offered up little in the way of objective or substantive reporting on ethics violations.

Maybe the citizens of Virginia don’t care that the state is rated one of the most vulnerable to corruption by the Center for Public Integrity. When the Richmond Times Dispatch held one if its Public Square events last October, it was sparsely attended. When it reported on the discussion, the transcript that publisher Tom Silvestri promised was delivered redacted, removing the most compelling discussion, much of which was about politicians the paper regularly supports.

A couple of things before I continue. No doubt Tom Silvestri would be a super game show host and is certainly an entertaining addition to any cocktail party guest list, but I wouldn’t count on his paper or any Media General product for my news. Delegate Jimmie Massie (R-72nd) will come across in what follows as at best naïve and sometimes self-serving, but gives no cause to suspect his personal integrity. At least Delegate Massie puts himself out there and should be applauded for showing up and his openness during this discussion. But there are a number of things you might not know if you rely on the redacted transcript (or “highlights” to use the paper’s term), you weren’t among the twenty or so at the forum, or you can’t find the full video online because the Times Dispatch has made that difficult to search by titling it Public Square 1008 on YouTube. This was Public Square 48.  

The Public Square was framed quite well with opening statements from panel members Megan Rhyne, executive director of the Virginia Coalition for Open Government, Ginger Stanley, executive director of the Virginia Press Association, and Andrew Cain, politics editor at The Times-Dispatch. All of that missing from the “highlights.”

To paraphrase, after the last session of the General Assembly, the fireworks began. There were several discrepancies in the way both Governor McDonnell and Attorney General Cuccinelli interpreted Virginia’s current ethics laws. Nothing had changed in decades, only the players. The continuing revelations resulted in heightened awareness of the citizenry and editorials that called for the legislature to do something when it returned to Richmond.

The impetus for the look at Virginia’s disclosure laws has been the scandal largely involving Governor McDonnell. Jonnie Williams Sr. who was the CEO of Star Scientific showered the governor and members of the governor’s immediate family with more than $166,000 in gifts and loans, some of which were disclosed and some were not. This underscored the laxity of Virginia’s disclosure laws. Under Virginia law, an officeholder is not required to disclose gifts that are given to his or her spouse, or to immediate family members. Though an officeholder is required to disclose the amount of loans, the names of the creditors are not required. Much of what the governor and his family received from Mr. Williams was not disclosed.

Last year the Center for Public Integrity did a state by state comparison of each state’s susceptibility for corruption. That was not measuring actual corruption, it was measuring the potential for corruption. Virginia was ranked 47th in all of the United States.

“And at the time I got very defensive because…and I know a lot of citizens even got very defensive…because at the top of the list were states like New Jersey and I think maybe even Louisiana and we all knew that those states are notoriously dirty. But again, the focus was supposed to be on the potential for corruption and not actual corruption,” explained Megan Rhyne. She went on:

“…And in that survey, they listed all these criteria and it was about their freedom of information act, their equivalent, their public records act, it included several categories and one of them was disclosure laws and one was about ethics and ethics commissions and whether or not there was independent study. At the time, as I said, I was a little bit defensive about it and then the doors got blown off a few months ago. And I started hearing from a lot of both citizens from local politicians, who wanted to know what their responsibilities were and also from reporters who were asking what the laws of disclosure required and didn’t require.

So there’s certainly a culture that has to be addressed here; it’s just not just the law that has to be fixed, but it is a culture that has to be addressed as well. The Virginia Way has gotten us very far and we have a relatively clean record in terms of corruption. But, it may be time to make some adjustments in how that’s done; how the approach to openness is taken.” (emphasis added)

A production of the PolitiFact team was presented:

Virginia’s ethics laws operate under two tenets: first that politicians ought to decide for themselves what gifts to accept from lobbyists and favor seekers. So the law is virtually silent on gifts; the second tenet is that any gifts that are accepted should be publically disclosed. In theory, full disclosure allows the public to decide for itself whether a politician is on the take. The problem is that these disclosure laws the politicians have written for themselves are so full of loopholes that the public can’t possibly know what gifts a politician has taken or what financial interests a politician has.

These loopholes are at the center of a scandal involving $160,000 that Governor McDonnell and his family accepted in loans and gifts from Jonnie Williams, the founder of Star Scientific, a diet supplementary company. Amid the controversy, Virginia’s disclosure laws are coming under fire for being too lax, the General Assembly is saying it’s going to improve them next year and all this raises the question: “Where do Virginia’s laws stand compared to other states?”

Virginia is one of a dozen states that don’t put a specific financial limit on the amount of gifts that the governor can receive from lobbyists and others doing business with the state. 41 states have an ethics commission that can examine allegations of misconduct involving public officials. But Virginia is one of none states that don’t have such a panel. While running for governor in 2009, Governor McDonnell vowed to create an ethics commission, citing it as a key hole in state’s oversight of its politicians. But ultimately that watchdog panel was never started.

Without financial limits on gifts or a panel to investigate financial interests, Virginia’s ethics laws rely on disclosure. A gift worth more than $50 must be disclosed as do any series of gifts from any one person worth more than $100. Virginia law also requires statewide politicians and lawyers to disclose any source of income worth $10,000 or more. That’s the highest threshold in the nation. Here in the Commonwealth, as in most other states, disclosure forms don’t require reporting gifts from lobbyists to a public official’s spouse or children. This is a key concern in the McDonnell scandal because most of the gifts were to the Governor’s family and were not disclosed. And although Jonnie Williams made $120,000 in loans to McDonnell’s business and family, the Governor was never required to disclose Williams as a creditor.

That’s because Virginia is one of two dozen states that doesn’t require public officials to list creditors by name. They simply check a box if they have loans of more than $10,000. And the creditors are identified only by industry sector such as banking or insurance. You see for yourself how Virginia stacks up against other states. We have our charts on our website Virginia PolitiFact.com. (note: these charts are more difficult to locate than the YouTube video)

An unexpected resource at the Public Square was unplanned by the Times Dispatch. Senator Don McEachin (D-9th) and Delegate Jimmie Massie (R-72nd) came to the event independently and were called to come on down by Tom Silvestri. Silvestri made a couple of utterances that causes one to wonder if the paper had invited and been frustrated by other legislators who claimed a scheduling conflict with a dinner somewhere or other.

Senator McEachin began his contributions to the discussion by raising the specter of penalties for violations and then going to the meat of the controversy over the McDonnell situation, gifts:

“…Another thing that I’d like to wrestle with, is the notion of, what is a gift? That sounds easy, right? Gift? Somebody gives you something. Somebody gives one of your children something, it’s a gift.

But I don’t think it’s that easy. Because when I think about my youngest daughter, who I’m very proud of – in fact, all three girls, I’m proud of all of you. But my youngest daughter just got a partial scholarship to Parsons, and she’s going to be a world-famous fashion designer. Well, her scholarship wasn’t need-based, it was merit-based. And so, is that a gift? Is that a gift that should be banned? And I don’t think there’s any person in this room, or any person in Virginia, that thinks that’s a gift that should be banned. I think that probably a lot of people think it ought to be reported because, even though the example I just gave you is an out of state college, suppose one day I’m on Senate Finance and one day UVA gives my granddaughter a scholarship, a merit-based scholarship to school. That’s something that ought to be reported, that folks ought to know about.

But again, should it be banned? I suspect not. I have a very dear friend who I went to college with, a guy by the name of John Whitehurst, he’s a political consultant in San Francisco. On occasion, I don’t drink, but on occasion he sends my wife a case of wine from his vineyard in San Francisco. He was in our wedding. We have maintained contact over the years, I was in his wedding. Should that be something Collette can’t get? Should that be something that is banned? Again, I don’t think there’s a person in this room who thinks it should be banned. Reported? I don’t know that I necessarily have a problem with the reporting.

A ban on gifts to us as legislators, I can deal with that. If that’s what the public wants; if that’s what the assembly passes; that’s probably a good thing. But those are just some of the issues we have to wrestle with and I don’t pretend that I have thought about all the issues yet.”

In the discussion that followed, it became clear that Delegate Massie approaches his duties in the legislature using his experience as a businessman. He is not a lawyer and that is reflected in his often unguarded remarks (which are refreshing). Enhancing some of the “highlights” published by the Times Dispatch, Delegate Massie:

“I want to thank Tom: thank-you and the Times Dispatch for doing this. Ya’ll’ve done 48 of these I heard you say earlier. I don’t know how many. I’ve been to a number of them and they’ve always added value and it’s a great opportunity.

I’m a business guy and I think about you all as my customers, not my constituents. This has been a great opportunity for me over the years to listen to my customers, to hear from my customers. I gotta tell you I came to listen tonight. I didn’t come to talk. So you’ll catch me a little flat footed tonight on the talkin’…

Are we perfect? Absolutely not. And I think that’s what Donald and I do every day, is we try to address these things, where we’re not perfect. … Obviously…I gotta tell you in the six years (I was recruited for this position. I never really ran for this position), in the six years I’ve been in the legislature, nobody has ever asked me or offered to do anything for me – I have a pretty high bar – that I have ever been uncomfortable with. So, I think in general, we have a system that’s working fairly well. Is it perfect? Obviously not, given the results and some of the things that have gone on in the last few months. I, like Donald, think that this ethics reform is going to be a nice opportunity to work together. It’s going to be a bipartisan issue. Because we believe in good… I know Donald and I both believe in good, full disclosure. Let the sun shine in…

But I think one of the areas you’re going to see a lot of reform in is the disclosure. Personally – nobody’s ever offered my wife anything. I never really even thought about my wife and my children. Obviously, though, I think we need to have just an open book with respect to disclosure.

There are some things that Donald says, you know if my parents are giving me gifts, long term friends are giving me gifts, these are some things I think we’ve got to make an exception of. On the gifts ban, I’ll tell you, I think we need to be a little careful there.

You know, one of the daunting things that Donald and I have to do is, we now sit in judgment of every issue in the state of Virginia, from A to Z. That’s a daunting job. How much of that spectrum do you think Jimmie Massie or Donald McEachin is an expert in? I can tell you, it’s a pretty narrow sliver. So, I spend a lot of time educating myself on the other parts of the sliver. So, we want to be careful. If people offer me, where I had drawn the line, Jimmie Matthews … I will accept gifts, travel and opportunities to travel, when that travel is highly educational for me about an issue that I need to be educated about. I will not take a trip with you – and I have been offered some trips – that’s just purely for pleasure.

About the business paradigm: yes, government can be informed by the business model, but it is not a business and people coming in to visit are neither literally customers nor vendors. From his perspective I understand his assessment that “nobody has ever asked me or offered to do anything for me … that I have ever been uncomfortable with.” That explains another portion of Massie’s assessment that the “highlights” omitted:

“I don’t have a problem with setting a dollar amount. But as Donald alluded to, it depends a lot on how you define a gift. Because Donald and I have people coming through our shop all the time during the session, and the Virginia wine people come through, you know, on and on and on. And they want to bring you a gift. We have businesses come through and they want to bring you and give you a sample of their products. They’re talking to you about we’re creating jobs in Virginia; we want you all to create an environment where we create more jobs and here’s products we’re making; go home and sample.

So, you know, you’ve got to be careful about how you define a gift. The only thing I would say to you is: let’s take the education issue; how you define gifts. Just for instance: what did Jimmie Massie know about uranium mining when he came to the legislature?  Right there, okay? As a business person my caucus is looking at Jimmie we have a big business decision to make here about uranium. And so when I’m offered the opportunity to go to Canada, and to visit the uranium mine in Canada, when I’m offered the opportunity to sit down with all the Canadian legislators, with Canadian regulators and have a broad and deep discussion about uranium mining I don’t think that is something you all want to prevent me from doing. I think that is in the best interest of the state of Virginia. I get educated on uranium mining because we’ve got a big decision to make here.

I took a trip to France, the same reason … when you go to France, I’ll tell you, France, the southern part of France looks exactly like Pittsylvania County, the geology’s the same, the weather is the same, uranium mining looks the same, they’ve got 60 years of experience and we were able to talk to the government and local businesses, the local government, it was incredibly educational. I did it in three days, four days by the way and I can tell you it wore me out. You know, I mean, I flew nights, ate well, it was exhausting. But I got a great education on something that I need to make a decision on that I had, that I knew nothing about. So I think it depends on the level of the gift and then how you define a gift.”

Among other things, there’s that reference to a “shop.” Why would legislators need a “sample” of any Virginia product? Is the Delegate a sommelier? What in the world would a taste of Virginia wine provide a legislator that a well written business case that justifies giving the likes of McDonnell’s friend Donald Trump millions of dollars in tax credits wouldn’t? Send the wine over to the Alcohol Beverage Control buyers and let them struggle with disclosure and disposal.

And you have to be incredibly amazed that a trip to France confers upon a citizen legislator with no background in geology the ability to compare the terrain of southern France to Pittsylvania County’s. And Canada? Those Canadians based their uranium mining and disposal regulations on those of…drum roll please…Virginia for the coal industry. Maybe he should have stopped in the vineyards of Ontario’s wine region too.

Speaking of education, there was this exchange:

Delegate Massie: “…I think you’re going see us make a big push on education incoming… I don’t know, Donald, did you have any ethics training when you came in?”

Senator McEachin: “You know, that’s one of the things I think we are missing out on in the legislature. When I was a freshman Delegate, actually before I was sworn in, Jeff Shapiro, Tony Troy, and I can’t remember who the third person was, gave us sort of a thumbnail sketch of ethics and how things work in the legislature. That was valuable and I’m sad to say that as far as I know that doesn’t take place today. But in 1995, when I first got elected, it was really helpful”

Now while you might want to believe that ethics education is built into our cultural upbringing, maybe there really does need to be a refresher for new members of the General Assembly and part of new job orientation throughout state government. However, that should serve as no excuse for graduates of, say Notre Dame, Regent University, or just any old law school.

McEachin commenting about McDonnell and Cuccinelli:

“…the first duty of a lawyer is to avoid the appearance of impropriety. …The appearance of impropriety. It’s like our first canon. …for lawyers to have done what they did, both our Governor and our Attorney General, I think is unfortunate. I’m trying to be kind because I’m in the middle of a campaign and I don’t want to be seen as overly partisan, but, I think it’s unfortunate and bad.”

However, even if a case goes to the Virginia judiciary, there may be reason to doubt the standard that will be applied. Check out “Virginia earns “F” for judicial financial disclosure.” But there is a little good news. Of all the states that earned an “F,” Virginia is only the 10th worst, just a couple behind Louisiana.

If you haven’t had enough, here’s some even more dispirting information: Virginia legislative financial disclosure rules are abysmal; another “F.” This begs the question: How can a legislature that cannot police itself, police the ethics of the remainder of the state government?

That is reason why an ethics commission, independent of the legislature would be an appropriate step. As Ginger Stanley mentioned outside the “highlights,” unlike Virginia, 41 states have an ethics commission. Senator Chap Petersen (D-Fairfax) is on board and made that proposal along with a full series of bills proposed before the bipartisan effort was announced.

There’s a lot more to discuss. Despite every effort to obfuscate the content of this Public Square discussion by its very sponsor, the full event is still out there on YouTube for review. The fact that in the first two hours after the announcement of the Public Square about the Kennedy assassination more people signed up than attended this event is interesting. Either Virginians aren’t that concerned about ethics in government or they believe they already know more than enough to pass judgment and are disgusted by what they know.

It is essential to understand that what is ethical and right is not always easy to distinguish from what isn’t. As readers of John Grisham are familiar, sometimes the two are in conflict and we often accept unethical behavior when the outcome is subjectively “right.” But we can only rely on an objective standard. Thanks to Governor McDonnell, Attorney General Cuccinelli, and Phil Hamilton, what we now better understand is that objective standards of conduct are not adequately or thoroughly codified in Virginia statues. A little window dressing will not solve the problem.