Another Baby Step in the Long, Treacherous Journey to Ethical Standards

Couldn’t resist.

Hey, guess what! Vermont is one of only three states without any enforceable ethics standards in law. Let’s hear it for Vermont Exceptionalism!

The effort to change that state of affairs has been percolating along at a barely perceptible pace for years now. At every step along the way, it’s met with opposition by state lawmakers, who tend to be very protective of their rights and obligations. The basic argument is, “Vermont is better than that! We don’t need no stinkin’ ethics law!”

Which is like saying we don’t need speed limits because Vermonters are inherently safe drivers. The vast majority of public officials do their jobs right, just like the vast majority of Vermont drivers abide by the speed limit. But that doesn’t mean we don’t need police patrolling the roads.

The latest turn in this long, depressing saga came Friday afternoon, when the House Government Operations Committee approved H.135, a bill that makes a few minor changes in how the Ethics Commission does its business. Still secret, still unfunded, still toothless. The bill got unanimous support after committee leaders assured members that the bill didn’t really do anything.

Left for future debate are the tough items: Adopting a Code of Ethics in state law, deciding how enforcement will work, whether the Commission should have any powers, and whether it should have a big enough budget to maybe hire at least one full-time staffer. (Right now, the only paid person is Executive Director Larry Novins, and he’s part-time. You call the Ethics Commission, you’ll likely be shunted to voice mail.)

After the jump: A little history, and a look ahead.

I’ve been covering this issue since 2015, when Secretary of State Jim Condos called for the establishment of an Ethics Commission with some real oversight powers. The Legislature did its best to smother ethics reform in the crib. It ultimately created a state Ethics Commission, but (a) the Commission had no enforcement powers, (b) the Commission barely had a budget, (c) its decisions would be exempt from public disclosure, (d) It wouldn’t have any investigatory power or resources, (e) it wouldn’t have any authority over the Legislature, and (f) it wouldn’t have any say over local government.

Remember that this was a time when the Norm McAllister fiasco was fresh in everyone’s minds, as was the EB-5 scandal* and an independent investigation of the state’s top law enforcement official. If that wasn’t enough impetus for real ethics reform, I don’t know what it would take.

*Reminder: We still have no idea who in state government was responsible for letting EB-5 fester into a full-blown catastrophe. Last I checked, Attorney General T.J. Donovan was withholding reams upon reams of documents on the grounds that the case is tied up in litigation and/or an investigation.

Since its creation, the Commission has kept on tootling along, taking the occasional complaint and passing it to entities with actual enforcement power, and providing advisory opinions for state employees looking for guidance (those opinions can’t be made public, BTW). According to its annual report for 2020, the Commission didn’t get many complaints, and nothing much became of the ones they got.

The Ethics Commission was contacted several times in 2020 with potential complaints. When advised how complaints are handled, potential complainants did not follow up with formal complaints. Rather, this frequent response: “Why bother, if you can’t do anything?”

There was one task that kept the Commission busy: putting together a state Code of Ethics. Which, so far, is nothing more than a document. But Novins is hoping that it will be enacted into law sometime in the future. He included a memo to that effect in the Commission’s annual report:

While ethics advice may be helpful, there is no protection for anyone who follows it. Nor is there is any sanction against anyone who disregards it. A public servant who ignores an advisory opinion or guidance may do so with impunity. For those reasons, Ethics Commission advice and guidance is now rarely sought. As noted above, a binding statutory code of ethics is essential for the legitimacy of any advisory opinion or ethics guidance.

That debate will be left for another day. And Gov Ops leadership made it clear that that would be a lengthy debate with an uncertain outcome.

I’m skeptical that anything meaningful will get done. I hope I’m wrong.

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