The Vermont Senate is poised to advance legislation that would create a statutory code of ethics for elected officials and state employees, but government watchdogs continue to face resistance to an independent agency to enforce ethical breaches.
Last month, a federal judge unsealed documents that showed former Gov. Peter Shumlin had accepted gifts and favors from the man who perpetrated the massive EB-5 fraud in the Northeast Kingdom.
Those documents, first covered by VTDigger, reveal that Shumlin’s aides flagged the favors — including free stays in a luxury New York City condominium — as a potential “problem.”
Shumlin’s general counsel, however, advised they needn’t be concerned from a legal perspective at least, because, according to an FBI summary of those conversations, “the state of Vermont does not have a statute regarding gifts, or a requirement for such disclosures.”
Vermont is one of only five states in the country without a statutory code of ethics.
“Right now, we’re operating under the assumption that unethical conduct is not a problem in Vermont government because we don’t really have a system to capture it."Christina Sivret, Vermont Ethics Commission
Christina Sivret, executive director of the Vermont Ethics Commission, said the lack of an ethics law here is a major reason the state has come under fire from groups like the Center for Public integrity.
“Right now, we’re operating under the assumption that unethical conduct is not a problem in Vermont government because we don’t really have a system to capture it,” Sivret said. “Our system to capture what’s going on and bring it to the public’s attention is really the press.”
On Wednesday, the Senate Committee on Government Operations is scheduled to vote on a bill that, if adopted by the full House and Senate, would codify an ethics code for elected officials and state workers in all three branches of Vermont’s government.
Read more: Should Vermont’s Ethics Commission have the power to investigate?
“And it’s meant to set the framework across government to provide a baseline for government ethics, so that people working in government and the public know what’s expected of them, and know what to expect from others,” Sivret said.
The legislation is the product of a compromise between lawmakers, ethics experts and attorneys and judicial branch officers, who’d raised concerns about an earlier version of the bill.
John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, said his organization was worried that compliance with the conflict of interest provisions in the proposed code of ethics could force lawyers to violate the “rules of professional conduct” that govern licensed attorneys in Vermont.
“We were very concerned that if the attorney would have had to publicly declare what the conflict of interest was and the basis for it and any additional facts, that they could have been requesting them to divulge confidential information — confidential attorney-client communications,” Campbell said.
A new clause in the bill clarifies that when the statutory code of ethics is at odds with the rules of professional responsibility, the latter will supersede.
“What we realized is one of the key pieces to accomplishing any ... overarching policy reforms is just having a basic level of confidence in government, and that is what eventually led us to looking at ethics reform.”Ben Kinsley, Campaign for Vermont
That agreement has cleared the path for legislation that would prohibit all elected officials and government employees from:
- Engaging in conflicts of interest or perceived conflicts of interest, and to publicly announce those conflicts when they arise
- Giving preferential or special treatment based on someone’s political standing or personal relationship with government officials
- Using private information acquired through government work for their own personal financial gain
- Accepting accepting gifts that could be perceived as being intended to win favor for the person who’s giving them.
Ben Kinsley is with Campaign for Vermont, an organization that’s been lobbying for stricter ethics standards in Vermont government for years.
Kinsley said the organization was founded in 2015 with the goal of advancing broad policy reforms, such as health care reform.
“Any time we had a conversation with folks outside of state government and sort of outside the mainstream political establishment, there was just an inherent disbelief in the ability of government to actually get some of these things done,” Kinsley said. “What we realized is one of the key pieces to accomplishing any of those sorts of overarching policy reforms is just having a basic level of confidence in government, and that is what eventually led us to looking at ethics reform.”
While the legislation pending in Montpelier now is “moving the needle” in the right direction, Kinsley said it doesn’t achieve the level of government accountability Campaign for Vermont is seeking.
Kinsley said the surest way to ensure ethical conduct in state government is to empower an independent agency to investigate and enforce statutory ethics codes.
Sivret, with the Vermont Ethics Commission, said her organization plans to pursue that power in the future.
“In order to have a really solid framework for government ethics, an outside entity such as the ethics commission does need to have some kind of investigatory or enforcement power,” Sivret said. “However, we envision that to be a very slow process. People are not even used to having a statutory code of ethics in place.”
Windham County Sen. Jeannette White, chair of the Senate Committee on Government Operations, is one of the influential lawmakers who’s opposed to giving a body like the Ethics Commission enforcement power.
“Until they can show that there are a ton of issues that need to be addressed and that they need enforcement because complaints aren’t being enforced by somebody else, then I certainly don’t support that at this point,” she said. “Why would we fund a whole enforcement wing for a few complaints when those complaints may well have been take care of by (a state agency)?”
“In order to have a really solid framework for government ethics, an outside entity such as the ethics commission does need to have some kind of investigatory or enforcement power."Christina Sivret, Vermont Ethics Commission
Scott Griffith, chief of planning and court services at the Vermont Judiciary, said empowering an independent agency to enforce the ethical conduct of lawyers and other judicial officers could run afoul of the Vermont Constitution.
The state constitution, Griffith said, explicitly states that Vermont Supreme Court has administrative control over courts, and “disciplinary authority concerning all judicial officers and attorneys at law in the state.”
Griffith said the Vermont Judiciary supports efforts to promote ethics and accountability among public officials. But he said those efforts need to acknowledge the constitutional duties accorded to the Vermont Supreme Court when it comes to overseeing lawyers.
“It’s not unreasonable to assume that at some point the (ethics) commission will seek … and there are many who I think want them to seek enforcement authority,” Griffith said. “And then we could be in a situation where we’ve got potentially conflicting processes in place.”
