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Toward a new Definition of Public Corruption 

 

A generic definition of public corruption might be that a government official trades his vote (or a favorable administrative decision) in exchange for money. For instance, a lobbyist might pay $10,000 to a member of Congress if he or she votes for a certain bill supported by the drug industry. A city housing inspector might agree not to issue a code-violation citation for faulty plumbing if the property owner hands him $200 in cash. Such an exchange would be considered bribery.

Unfortunately, the issue of public corruption runs deeper than this. Let’s keep the basic definition in mind: the transfer of money or something of value to a government official in exchange for a favorable decision by the official or persons in government with whom he has influence benefiting the person who gave the money. Government has certain powers to regulate business. Business has money. There is a corrupt relationship between these two parties when money (or other things of value) given government officials influences decisions that these officials make in an official capacity.

Recently a group of Minneapolis landlords met with an FBI agent to discuss possible corruption in Minneapolis city government. Out of this discussion came the conclusion that the FBI interprets public corruption quite narrowly. This agency, charged with investigating corruption in local governments, will investigate only what it thinks the U.S. Attorney’s office will prosecute. The U.S. Attorney’s office focuses upon direct personal corruption. You practically need to have a City Council member personally asking a business owner for money with the implication that failure to pay the money will result in a decision adversely affecting that person’s financial interest. And you normally need to record the solicitation to convict the official in court. Most City Council members are sophisticated about such things and would never let themselves be put in that situation.

Petty bribery of the sort prosecuted by the U.S. Attorney’s office was of less concern to the Minneapolis landlords than abuse of the city’s regulatory powers to take property away from their owners for unreasonable or frivolous reasons. For purposes of argument, let’s say that a city housing inspector condemns a house because someone threw a rock through the back window. The house then became “subject to trespass” and was considered to pose a “danger” to the community. Normally one would think that, learning of the broken window, the property owner would simply replace the glass and that would be the end of it. However, housing inspectors have vast discretion to condemn buildings. They need not be reasonable or the least bit sympathetic to the owner. If they abuse their discretion, it could cost property owners thousands of dollars to lift the condemnation; or, perhaps, they might lose their property. Great damage is inflicted.

The inspector in such a situation would have abused his power to regulate the city’s housing stock. However, abuse is subject to interpretation. Whether or not abusive practices are considered corrupt depends on whether the inspector has personally benefited from the situation. He or she must have benefited financially. However, there are others ways that inspectors can benefit. Some are psychological.

Let’s say it is a female housing inspector who hates men. She gets a personal kick in ticketing male property owners for minor or nonexistent violations of the city’s housing maintenance code. It is personally gratifying to her to watch these men squirm and beg for leniency. What revenge it is to her for what certain other men may have done in the past! Yet, the property owner would have little way to challenge this type of abuse. If he claimed that gender-related pathologies were behind the ticketing by this inspector, he would run into a buzz saw of gender politics at Minneapolis city hall. The “male chauvinist” label would be added to what other negative reputation he might have as a property owner. There are many different pathologies that could come into play with power-hungry inspectors or City Council members.

The FBI agent made it clear that cities cannot be charged with corruption. City officials can do much damage to people for reasons unrelated to reasonable interpretations of law; but that in itself cannot be prosecuted. For corruption charges to be sustained, someone must have benefited personally from a decision. The beneficiary must have been the public official himself, a relative, or another person with close personal ties to the official, preferably financial ones. It cannot be the city itself, its employees, or taxpayers.

A property owner at this meeting brought with him an example of what might be considered a corrupt practice under a broadened definition. The city of Minneapolis recently adopted an ordinance that requires owners of vacant buildings in the city to pay an annual vacant-building fee of $6,000 supposed to defray the extra cost of inspecting and policing such properties. One could argue that a fee of $6,000 a year is excessive yet most people would say that such ordinances are well within the power of elected officials to pass: The city was merely creating a financial incentive for property owners to put their buildings back in service as quickly as possible.

Some of us landlords saw a possible abuse in the city’s ability to impose the fee for a vacancy caused when one tenant moves out of a house and another moves in. Maybe the house is vacant for a week while the house is cleaned and made ready for the next tenant. Is it fair to impose a $6,000 fee in the interim? Clearly not. Normal turnover of tenants should not trigger a housing violation costing thousands of dollars.
However, the ordinance itself, in Section 249.80, limits the conditions of imposing the fee to five situations: (1) condemned houses, (2) houses that are “unoccupied and unsecured for five days or more”, (3) houses that are “unoccupied and secured by means other than those normally used in the design of the building for thirty days or more”, (4) houses that are “unoccupied and ha(ve) multiple housing maintenance, fire or building code violations existing for thirty days or more”, and (5) “houses that are unoccupied for a period of time over three hundred sixty-five days and during which time an order has been issued to correct a nuisance condition.”

A particular property owner had recently received notice from the city that he would be required to pay a $6,320 vacant-building fee for the fourth reason. He owned a house that had been vacant for at least thirty days and still had some uncompleted work orders. The previous tenant had done extensive damage to the house, the housing inspector issued work orders to repair the damage, and it had taken him more than thirty days to complete them. Furthermore, the housing inspector had told the property owner that he would not be allowed to admit a new tenant until all the work orders were abated. Here, then, we had a case of the city forcing someone into a fine-producing situation. The housing inspector had both issued the work orders and required that the house be kept vacant until all the work was completed. That person, not the property owner, had “caused” the vacancy to occur. Was this a corrupt practice? Evidently not. The city inspector had not personally benefited.

We had private information that a certain Minneapolis City Council member was ordering inspectors under his jurisdiction to write as many tickets as possible for the purpose of generating revenue. Like the proverbial policeman who waits to catch speeders along certain stretches of highway, he was violating the regulatory intent of the law that permits assessment of fines. It may be that city officials were trying to keep property taxes low by generating as much revenue as possible from other sources. Was this unethical? Yes. Was it illegal? Such motivations are hard to prove. Was it a corrupt practice? No, it was not by current definitions since the people making the decision did not stand to benefit personally. The payers of city property taxes did stand to benefit but they were not in the decision-making loop.

I would argue that covert efforts by elected officials to force citizens into a situation where they unwittingly violate laws and must pay fines are a corrupt practice even if the officials themselves did not personally benefit. Those practices certainly undermine confidence in the decency of government. However, since elected officials write the laws, they may be reluctant to give up this revenue-raising “tool”. Abuse then piles on top of abuse, bureaucratic deceptions accumulate, and kangaroo courts meet, until citizens are sick and tired of government in general. What do you think we are seeing these days? If government actions are unfair, some will take to the streets.

But we must be realistic. Corrupt practices must have a beneficiary connected to the official making decisions in order for them to be prosecuted under today’s rules. Maybe we can approach it this way. If a city inspector forces someone to lose his property through condemnation or unreasonably burdensome work orders, the property is then picked up by someone else. Initially, it may be the city or the county government. Eventually, however, the property will be acquired by a new homeowner, investor, or housing non-profit. Follow the money. See who the new owners are and what relationship, if any, they have with city officials who might have been involved in exerting pressure on the previous owner.

If there is a pattern of property acquisitions in a certain area and the city is involved in property transfers, one would suspect connections between city officials and the new property owner. These possible connections need to be investigated by a competent agency such as the FBI to see what is happening below the surface. But again, the focus of corruption investigations is to see if the elected official is influenced to act in a certain way because a private party has given money to the official, stands in a certain relationship to the official, or otherwise has special influence.

There is a complicating factor here. All politicians need to raise money for their election campaigns. Campaign contributions are not considered bribes but expressions of civic interest. Maybe this assumption is naive. If the payment of money - whether it is a personal bribe or a campaign contribution - effectively controls the elected official’s decision, then I would argue it is improper. All those members of Congress who supported the prescription-drug benefit enacted during the Bush administration after receiving substantial contributions from the drug companies were almost certainly influenced by money. Effectively, their vote was “bought”. However, the laws have not caught up with that fact and perhaps will never catch up because it is politicians who write the laws.

Dean Zimmermann, a member of the Minneapolis city council, was convicted of bribery and went to prison because he accepted money from a developer named Gary Carlson who had a development proposal before the city. Carlson, wearing a wire, delivered money in envelopes to Zimmermann; and certain conversations that suggested wrongdoing were recorded and heard in court. Zimmermann claimed that he was accepting money for a legal defense fund in connection with a reapportionment case. The receipt of money for that purpose was not illegal. Also, Zimmermann voted against Carlson’s proposal when it came before the City Council. Yet, when the FBI raided his home, they determined that funds given to the legal defense fund had been comingled with Zimmermann’s personal funds. He might have been guilty of sloppiness in handling money rather than criminal intent. The point here is that the difference between a bribe and a campaign contribution can be less than clear.

In another example, a developer and former City Council member, Steve Minn, posted a message on the Minneapolis e-democracy discussion list to the effect that a current City Council member, Gary Schiff, had aggressively solicited campaign contributions from him and his business partner. “It is a well known practice of Mr. Schiff, who has chaired Zoning & Planning for the last eight years to solicit contributions from the development community, with the implied power he has over zoning decisions,” he wrote. When Schiff later voted against Minn’s proposal, Minn went public. Schiff responded that “each is a case-by-case situation, depending on the merits, like all other quasi-judicial votes that come before me. Donations to my campaign never influence my vote. Never have. Never will.”

Here it appears that Schiff was careful to deposit Minn’s money in a campaign account. He was not prosecuted and did not go to prison. Otherwise it does not appear that what Zimmermann did was substantially different than the situation with Schiff. Both solicited money from developers. Neither council member “traded” his vote for money because, in the end, neither voted for the developer’s proposal. However, despite Schiff’s protestations of indifference, it is clear that developers who have business before city government give money to the campaign funds of City Council members because they expect more favorable treatment in decisions that the council member might make affecting them. The difference between this situation and a bribe is slight in terms of the basic relationship. In both situations, however, we see that whether or not the elected official votes for what the donor wants is irrelevant to whether the exchange of money is considered corrupt.

Another factor that might be taken into consideration in cases of corruption is materiality. Did the campaign donor or the giver of a bribe give the elected official enough money to effectively control his vote? What if a drug-industry lobbyist buys a meal for a member of Congress costing $10. Would that be enough to “buy” the Congressman’s vote? Probably not. Yet, the element of materiality is not considered significant in cases of public corruption. We are hung up on form rather than substance.

As a result, we have officials with rapacious organizations pretending to be squeaky clean with respect to accepting personal gifts. I remember when a conservative woman presented the city’s Finance Director with a pocket calculator and a copy of the Constitution as humorous props to suggest that the city needed to “do its math” more accurately and “stick to the law” more closely. A week later, she received the calculator back in the mail because the city’s ethics policy did not allow such gifts to be accepted. This was a device costing perhaps $5, yet the policy assumed its acceptance might influence the official’s decisions while in office. I had to laugh at this show of ethics. The 10-cent combs that I once handed out in a campaign were sometimes rejected for the same reason.

The bottom line is that current laws and policies concerning public corruption seem obsolete. Many unethical practices occur in city governments that go unpunished because the law has not caught up with the reality of wrong doing. Then, too, it seems that money will always play a significant role in governmental decision making so long as political candidates need to raise money aggressively from interested parties in order to be elected. I am less interested in indiscretions that certain City Council members committed who went to prison than in the much more significant practice of taking property away from people unfairly and the network of government careerists and allied professionals who profit from this systematic abuse.

Of course, a government official who raises money to get elected “personally profits” from this through the salary he earns, the people he puts on the public payroll, and the lucrative lobbying or employment opportunities that await him after leaving office. It’s time that the theory caught up to practice. Brown paper bags stuffed with twenty-dollar bills mean less to public officials today than they once did.

 

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