ETHICS: An End to The Old Politick

Massachusetts politicians have been called many things in the past, but "ethical" is not one of them. From former Gov. Elbridge Gerry, who fathered the gerrymander in 1815, to State Senators Joseph J.C. DiCarlo and Ronald C. MacKenzie, who were recently convicted for extortion, the Commonwealth's officials have been infamous for usurping "the public trust." A newly-created State Ethics Commission has the potential to change the state's reputation for "Old Politick." Before it can do so, however, the commission must overcome several roadblocks.

"This commission is an excellent first step towards cleaning up the government's reputation," State Rep. John Murphy, an early backer of the new statute, said recently. "But its creation is not going to stop unethical people," he added quickly.

The legislature did not, of course, rush willingly into creating its own watchdog; it only acted when Common Cause collected 95,506 signatures in support of a new ethics statute. The legislature did, however, squeeze through a watered-down bill in order to avoid seeing the tougher Common Cause proposal on the November ballot. As local attorney Robert Moncreiff explains, "while a lot of people woke up this January and felt the law had dropped out of the sky, it was clear that it would have been on the November referendum list if the legislature didn't act quickly--and nobody wanted that."

The more thorough Common Cause proposal required any public employee "with an economic impact other than a diminutive nature" to submit the feared financial disclosure form. In addition, the original bill required information on third party contacts, implying that lawyers would be forced to divulge the identity and background of their clients. Both of these unpopular provisions were struck from the present statute.

The coverage of the new ethics law is restricted to elected officials and appointees who hold "major policy-making positions" and exempts all unpaid members of advisory boards from submitting disclosure information.

However, despite the hamstringing of the bill prior to passage, commission members insist the financial disclosure requirements are stringent enough to be effective. Officials are still required to list their business dealings in great detail. The form also probes deeply into the question of gifts, while not snooping too far into an offical's private family records.

"The public is very, very happy that there even is a disclosure form," L. Scott Harshbarger '65, counsel to the commission, said recently. "The form does require a great deal of specificity where there is a potential for conflict of interest," he added.

Chaired by Harvard Law professor James Vorenberg '49, the commission consists of three gubernatorial appointees, one selection of the attorney general and a fifth member chosen by the secretary of state. Currently, one Independent, two Democrats, and two Republicans hold commission seats. Despite its non-partisan composition, however, many state officials still view the commission with a mixture of fear and distrust. "Some people here perceive us as a horror story imposed on the legislature," David Brickman, commission member, explained recently. "But we are not a band of J. Edgar Hoover Jr.'s and we will do our job professionally, so that if they have nothing to hide they have nothing to fear."

Murphy hopes the officials' tense feelings will dissipate now that the initial hurdle of filing their first disclosure form is over. "People seem to think that financial disclosure means political voyeurism. They think they're going to find out," he adds, "but they're going to be awfully surprised."

Furthermore, in order to quell fears of a witchhunt, the commission has set up strict rules of procedure concerning its handling of disclosure forms. Investigations by the commission remain confidential. Any breach of that confidentiality carries a fine of up to $1000 or one year in jail or both. While the files are open to the public, anyone requesting information about an official must leave his name with the commission, which forwards the person's identity to the official whose statement was examined. Some defensive administrators suggest that anyone rummaging through an official's files should also be investigated, but Brickman dismisses the idea as self-defeating. "The fact that there are rogues and scandals in every walk of life," he asserts, "does not mean that we need to, or have the right to, have disclosure forms from all the rogues and scandals. After all, we ought not to lose sight of what we're talking about and that is the people in government."

Aside from its low credibility, the major obstacle remaining in the commission's path is the total absence of an investigative division to check the accuracy of disclosure information. As a Catch-22-style maneuver, the legislature authorized all but $35,000 of the commission's fiscal 1979 budget request, yet declined to create the investigative positions themselves. Gov. Edward J. King added to the commission's woes last Thursday when he proposed a $228,200 cut in its $631,350 budget request for the upcoming fiscal year.

Brickman concedes that the commission's ability to perform its function is greatly impaired by the administration's stubbornness and sees a battle ahead over authorization of the investigative spots: "You just have to take one look at our offices, they are barren. We have a place to live but no place to sit down."

Brickman, however, has an advocate in Common Cause Director Jay H. Hedlund, who says his organization may take legal action against the legislature if it continues its stall tactics. "We're just not so sure that the legislature has the authority to specify what kind of positions the commission can have," Hedlund explains. "We are well aware of the commission's problems and will be working to pressure both the Ways and Means Committees and the full legislature."

Should legal action fail, the commission can still bypass the legislature by using investigators from other agencies. An obscure section of the law allows the commissioner of public safety to loan personnel to the commission among them the State Police. "But clearly that is not the best way to go about it," Hedlund notes, "because other agencies don't want their budgets tapped."

Furthermore, Chairman Vorenberg feels that an additional problem with borrowing investigators from the State Police is the threat of leaks. "After all, there is a very high degree of confidentiality in our investigations and I wouldn't feel comfortable unless the direction of it was under our own staff," Vorenberg explains.

Although it still lacks investigators, the commission does have the power to take "punitive action" against anyone violating the ethics statute. The board may suspend an official's job, stop his pay, or in extreme situations, refer the case to the attorney general for legal action. The maximum penalty for a breach of ethics is $1000.

With a weakened ethics commission, the state's only true watchdog remains a nongovernmental one, the press. Extensive press coverage by the media has thus far led to the resignation of three King appointees, Elder Affairs Sec. Stephen G. Guptill, Insurance commissioner Stephen F. Clifford and, most recently, MDC Associate Commissioner Thomas Da Silva. A fourth King appointee, MDC Commissioner Thomas Haggerty, took a paid "leave of absence."

King supporters feel the media is hounding the new administration and Murphy agrees, noting that the commission may signal an end to the witchhunt. "The press is trying to embarrass people," Murphy states. "It seems to be a legitimate electronic press and print media attempt to chase around people like public officials, but we'll try to protect against that." Secretary of State Michael Connolly, another strong proponent of the ethics statute, agrees with Murphy, adding "The press ought to address the question of ethics for themselves."

While the ethics commission has yet to take an active role in the investigation of King appointees, the House recently proposed a resolution calling for it to launch a preliminary inquiry. The state's only other investigative commission, a blue-ribbon panel on the MBM contracts scandal, is currently seeking the authority to look into the Massachusetts Port Authority, an agency directed by King until his firing in 1975. Whether either commission will eventually plunge into the King affair remains in doubt, but Harshbarger said the suggestion "would have to be taken very seriously."

Despite the possibilities of success, the survival of the ethics commission as a legitimate check on official misconduct remains an open question. The 1978 Ethics Law is not the first such statute. In fact, a conflict of interest law has been in effect in the Commonwealth for 16 years. The old law, however, was breached far more often than enforced. As Harshbarger notes, "We have once again created a law and an enforcement arm. Like so many that went before it the question is--Will it go down the drain, or will it become merely an appendage or a bureaucracy? The public is happy so far and the thing has begun to function, but will that feeling be around in the future?"