|Deseret Morning News graphic Legislative conflicts|
One of the Utah Legislature's perceived strengths is that its 104 members serve part time and bring their private-job, real-world experience into lawmaking.
Yet, another result of that experience, a Deseret Morning News review of all bills introduced in the 2007 Legislature shows, is that a fourth of the session's legislation came with clear or possible conflicts of interest involving the measures' sponsors.
Insurance agents sponsored bills on insurance regulation. Police officers carried bills on criminal penalties. Contractors sponsored bills on construction. Teachers carried bills on education.
The percentage of lawmakers' conflicts of interest may actually be even higher than 25 percent because some lawmakers reveal little of their real conflicts in their personal disclosure forms, using only broad or vague wording.
And Utah lawmakers can't escape their conflicts of interest when it comes to voting on bills. Unlike members of Congress or other state legislatures, Utah's legislators, due to internal rules, must vote on a bill even though they may have a clear conflict of interest. However, they are supposed to declare their conflicts, either on a written form available online or through verbal declarations at the time of the vote.
Twenty other state legislatures allow a member to vote "present but abstaining," reports the National Conference of State Legislatures. Of those, 15 allow the "present" vote only after the body hears the member's reason for not wanting to vote and only after a vote of the body allows the member not to vote. In some states, the vote of the members to allow a fellow member to vote "present" must be unanimous.
In Maine, the presiding officer allows a member to vote "present." And in Wyoming if you don't get permission beforehand to vote "present," and you still refuse to vote, you are automatically recorded as a "yes" vote. You can see how other states deal with conflict of interest voting at www.ncsl.org/programs/ethics/voting_recusal_categorized.htm.
In Utah, some conflicts could enrich or otherwise benefit lawmakers or their relatives, employers, businesses or civic organizations.
A new Deseret Morning News/KSL-TV poll shows that Utahns overwhelmingly want tougher conflict of interest disclosure and want Utah legislators to be able to vote "present but abstaining."
Known or hidden
For all the concern, some conflicts can actually be good. For example, a physician/legislator may use his expertise to improve health laws, even though it may also benefit him and fellow doctors. The question is: How do legislators avoid or disclose their conflicts?
In the 2007 Legislature that ended in February, at least 70 of Utah's 104 part-time lawmakers introduced one or more bills that appeared to create a conflict of interest, according to a computer-assisted analysis by the Morning News.
The newspaper looked at investments, business holdings and organization memberships of members, and what their bills would do. In some cases, the newspaper used information that was not provided in the legislators' own conflict of interest forms as those forms may have been incomplete to build personal/professional dossiers on legislators.
As may be expected, some members pursued a much higher percentage of bills with conflicts of interest than others.
Reps. Carl Wimmer, R-Herriman, and Gregg Buxton, R-Roy, had the highest such percentages: 100 percent each.
Wimmer, a West Valley police officer, introduced bills including amendments about discharge of firearms, penalties for sexual offenses and kidnapping, criminal statute of limitations amendments and addressing penalties for murder of a child all items that he could deal with in his law enforcement duties.
Buxton, who owns a home inspection firm, has since resigned his legislative seat to become Gov. Jon Huntsman Jr.'s director of state buildings. Buxton knew he was going to take that post during the 45-day general session. So besides Buxton's conflicts of interest in the construction trade, clearly he also had a conflict with any legislation Huntsman either wanted passed or killed since Buxton wouldn't want to anger his soon-to-be-boss.
It is those kinds of "unofficial" or "personal" conflicts of interests that may or may not be known to the public or fellow legislators through conflict of interest forms.
One bill introduced by Buxton amended laws that govern the state's building division, which he would soon oversee. The other bill allowed the division to oversee borrowing through new bonds for new facilities construction. Buxton routinely carried that bonding bill because he was also chairman of the Legislature's building board budget committee.
So one can see the possible conflicts of wheels within wheels within wheels that is often seen in legislators' private lives.
Others with high percentages of bills with conflicts of interest included Rep. James A. Dunnigan, R-Taylorsville, an insurance agent, who had 89 percent of his bills dealing with the insurance industry; Rep. Lorie Fowlke, R-Orem, a family-law attorney, 83 percent; and Rep. Patrick Painter, R-Nephi, a car dealer with 80 percent.
Again, nothing may be harmful at all with some such conflicts of interests. The questions being asked: Were all such conflicts properly disclosed? And is it proper for lawmakers to vote on bills where they have such conflicts?
Timely disclosure is also important. Yet in the Utah Senate several senators didn't bother to file their disclosure forms until the 45-day session was half over. And a few, like Sen. Brent Goodfellow, D-West Valley, didn't update their previous year's forms until the final days of the session.
House Minority Leader Ralph Becker, D-Salt Lake, says he has considered several ways to make conflicts of interest more "open and transparent" in the Utah Legislature. But each time he has made proposals, he has met with resistance from colleagues and abandoned his efforts.
"It's a given that a part-time Legislature will have conflicts. We have to accept that," said Becker, who this year is running for Salt Lake City mayor.
As a citizen member of the city's Planning and Zoning Commission several years ago, Becker said he pushed new conflict of interest rules for commissioners. "If you had any interest" in a pending commission action, "you had to declare it, and then you left the room. You didn't discuss the change with anyone, you didn't debate it, and you didn't vote on it. Those tough rules served us well. And I think similar rules could serve the Legislature well," Becker said.
"There are 104 of us. And no one should assume that we know all of our colleagues' conflicts. We can't," even with the current public-disclosure forms, he said.
Becker is a nonpracticing attorney who heads a local city planning/environmental consulting firm. He lists all his firm's clients on his legislative conflict of interest form. And he believes other legislators can do the same thing, especially attorney/legislators.
"There may be a rare and it would be rare instance where (an attorney/legislator) can't list a client because of attorney-client privilege. But by far most of the times they can." That's because it is no secret who a lawmaker/attorney represents, their names may be on court documents or readily known within the legal community.
Yet no practicing attorney/legislators list those clients on their disclosure forms.
"These job-related connections (of all legislators) can affect a legislator's financial or personal situations, and certainly can impact their judgment" on an issue before the Legislature, Becker said.
"Strong conflict of interest ethics protects not only the public but legislators as well. And they can remove even the hint of impropriety," he added.
Kirk Jowers, head of the University of Utah's Hinckley Institute of Politics, says there is great value in having a part-time, citizen legislature.
But, he adds, there is a hidden conflict of interest on legislation that few people talk about: Legislators' legal ability to take cash out of their own campaign accounts and spend it any way they wish.
"It is almost legalized bribery," said Jowers, "if a lobbyist or special interest group gave money to a legislator's campaign account" in hopes of getting special treatment. "If they gave you $10,000 or $20,000, that is the ultimate conflict of interest."
Sunshine or fog?
The key to any good conflict of interest process is extensive disclosure by legislators.
A Morning News review of all 104 conflict of interest forms shows that some legislators are very good about disclosure, others quite poor.
Contributing to the problem are the disclosure rules themselves they can be interpreted in a very broad way. For example, a legislator may list "utility stocks" in general and not list which specific stocks he holds. It could make a major difference if he held stock in Exxon, an international oil firm, or Questar, Utah's local natural gas company.
The legislators' conflict of interest forms can be found by going to the Legislature's home page at www.le.state.ut.gov and clicking on the House and the Senate sites.
Some examples showcase good and poor disclosure that can be perceived on lawmakers' forms:
Rep. Jennifer Seelig, D-Salt Lake, said she works for 1-800 CONTACTS. That firm is a major financial contributor to many legislative races.
Rep. Carol Spackman Moss, D-Holladay, lists "none" on her disclosure form under possible conflicts, yet Moss is a retired teacher who is one of the strongest backers of public education, and she receives retirement payments from her school district.
Rep. Mike Morley, R-Spanish Fork, a developer and charter school builder, lists about 25 different entities, many of them subdivisions, that he's been a part of in one of the more thorough disclosure forms. Morley also lists the state department tenants who lease some of his office spaces.
Rep. Becky Lockhart, R-Provo, lists that her husband "is a registered lobbyist." But she doesn't list any of her husband's clients (he only has one), nor does she list his name, so citizens may find it difficult to identify him in the lobbyist online files at Lt. Gov. Gary Herbert's Web site. Rep. Ben Ferry, R-Corrine, however, lists the names of his father, mother and two close relatives, all of whom are registered lobbyists, and their clients can be found online.
Most legislators don't list what their spouses or partners do. Or if they do list a potential conflict, they don't say that it is their spouse's conflict and not directly theirs.
Many lawmakers' conflict of interest forms are oddly incomplete, forcing a reader to search for answers elsewhere. For example, Rep. Gage Froerer, R-Huntsville, is a real estate broker in Weber County. But his form doesn't say that. He just lists as a conflict: Gage Froerer & Associates, without saying what the firm does.
Becker lists on his form all of his planning clients a rarity in the Legislature. From certified public accountants to dentists to lawyers and engineers, many legislators who carry clients refuse to name those clients. No lawmaker/attorneys list their clients on their forms, although they say when they have a conflict, they verbally declare it before they vote without naming their clients.
Legislator/lawyers are a unique problem, as they may claim attorney-client privilege to keep their client list secret. The secrecy, however, can be carried to absurdity: A dozen years ago or so, a senator who is a well-known water attorney refused to tell the Morning News who his government clients were, yet halfway through the session he appeared at a public, nonlegislative meeting representing a Salt Lake County water company.
Twelve of the 29 senators either carry clients themselves or their spouses carry clients. That's 65 percent of the Senate.