There aren't really any significant new developments regarding the political hit job presently being conducted against Pennsylvania Department of Environmental Protection Secretary Kathleen McGinty and Department of Conservation and Natural Resources Secretary Michael DiBerardinis. The actual commission rulings are now public, the GOP lawyer drone drops the "bombshell" that an organization naturally aligned with McGinty's and DiBeradinis's interests is advocating on their behalf, and editorial boards are weighing in with opinions ranging from sensible to adversarial to just plain stupid. And, if GOP legislators can't be reasoned with to act in good faith regarding McGinty and DiBerardinis, perhaps it's time to start throwing some elbows. More after the jump.
The State Ethics Commission's advisory opinions concerning the prospective ethical issues for McGinty and DiBerardinis are now available online.
I haven't seen much analysis of the opinions by the media or otherwise, and I'm not a lawyer. But in a quick read of the McGinty opinion I noted the commission's emphasis of a "liberal" interpretation of the pertinent definitions within what is a "conflict of interest" under the ethics statutes. In other words, degrees of separation in the grant process aren't going to be given consideration; if an immediate family member has some connection to an organization receiving a grant approved in some form by a public official, then there's a conflict of interest. The trouble with this interpretation is that the investigation and penalty components of the statutes don't, on their surfaces, give much leeway in terms of intent, degree of authority exerted, or material connection between authority exerted and benefit received. It appears that if there's a conflict, then there's a felony, no matter what. Application of such a penalty in cases such as these would be an abominable perversion of the "good government" ethos behind ethics legislation. The advisory opinions can be a good jumping off point for defining a reasonable procedure for dealing with potential conflicts like the ones involving McGinty and DiBerardinis, but more work needs to be done - either in adminstrative and judicial application, or in statutory revision - to flesh out what should be done when a conflict actually occurs.
The commission also held that a conflict would occur not merely when a public official considers an award to an immediate family member (directly or by organizational connection), but also whens/he considers an award to an entity that would be considered a competitor with the immediate family member. This expands the zone of potential conflict, and increases the instances of independent review that would be necessary. How much this could gum up the works of the grant process is another thing that should be considered.
Of course, all of that analysis shouldn't obscure the reality that this isn't a substantive investigation of an ethical concern, but a partisan witch hunt. This characterization no doubt angers the PA Republicans trying to pull this off, as evidenced by a report of a memo sent by Senate General Counsel Steve MacNett to GOP Senators (Caution: contains right-wing true believer message posts). MacNett points out that PennFuture, arguably the leader of the mobilization effort on behalf of McGinty and DiBerardinis, has received approximately $1M in funding from DEP and and DCNR grants, and thus, its advocacy should be dismissed as the work of a "paid publicist for the [Rendell] Administration." PennFuture fighting for McGinty and DiBerardinis - well... duh! Take a gander at its mission and its projects. Do you think this is a group that tailors emphasis just to keep itself funded? "Yeah, we were going to evangelize the myth of global warming, but Rendell appointed this McGinty person, so we're gonna do the clean water thing instead so that we can all pay our mortgages." Grants are not at the heart of PennFuture's solidarity with these threatened secretaries, and it's indeed dishonest to suggest otherwise. Put another way... I'm not receiving a dime from these agencies (and I have the utility shut-off notices to prove it). Yet, depsite a destructive tendency of self-criticism during the composition process, I'm writing overlong, "shrill" defenses of McGinty and DiBerardinis. What's my financial angle?
So far the editorial boards of Pennsylvania newspapers which have addressed the controversy have focused on the ethical questions presented, while treating the political ramifications as a secondary consideration. Two newspapers - the Pottsville Republican & Herald and the Harrisburg Patriot-News - struck a perfectly reasonable balance. They agreed with the ethics commission rulings, but explictly stated their support for the reconfirmation of McGinty and DiBerardinis and their belief that the rulings should not be used to hold up the reconfirmation process. I'm fine with that.
On the other side, we have the Richard Mellon-Scaife-bankrolled Pittsburgh Tribune-Review, doing its usual thing in calling for an expansion of the probe of the secretaries' activities. As contemptible as its stance is, at least it's straightforward and self-aware.
That certainly can't be said for the editorial board of the Allentown Morning Call. Summarizing the whole affair as being "mostly about good government " and describing Ed Rendell's tenacious defense of his nominees as a "political smokescreen" betrays either inherent myopia or willful ignorance of what is actually taking place.
Its description of the "discoveries" of the "apparent conflicts" as occurring "through a Philadelphia Daily News investigation" is particularly laughable (keep in mind PennFuture's assertion that the State Senate had, at minimum, the information concerning DiBerardinis' spouse's employment five weeks prior to his reconfirmation hearing, yet never raised the issue during the hearing). The big "investigation" consisted of a single 750 word column by John Baer, a former prominent Republican political operative, on a news-dump Friday, five days before the scheduled reconfirmation vote. Somehow, in this expansive "investigation", the names of other public officials not having reconfirmation hearings in the following week didn't come up. What are the odds that this "investigation" was more along the lines of "Let's e-mail Bill Scranton's former press secretary some 'smoking gun' information, and have him do our surprise hatchet work for us in the guise of 'ethics reform'?"
And what, pray tell, is Rendell "smokescreening"? Does the Morning Call think Rendell wants to gut the Ethics Act in futherance of a massive funneling of state funds to secretaries' spouses? Apparently it considers this more plausible than the conclusion that Rendell is fighting to save McGinty and DiBerardinis simply because he wants to save McGinty and DiBerardinis.
The Morning Call also strongly supports a retrospective investigation and ruling regarding McGinty and DiBerardinis ("We'll be happy to file the complaint, if no one else will."). Yet it simultaneously maintains that its support for the investigation doesn't mean it has knives out for the secretaries:
None of this is to say that undue influence was brought to bear in awarding those grants. It may be that the involvement of those cabinet secretaries was pro forma. And we're not suggesting that these cabinet heads shouldn't be reappointed.
Earth to Morning Call: No matter what your idyllic vision of what the process is, the political reality is that this exaggerated controversy is being used to keep McGinty and DiBerardinis from being reconfirmed. And contrary to your make-believe reading of the Ethics Act might be, an investigation would not focus on the grants, but on the public officials. There's no textual allowance for a determination of "undue influence" or "pro forma involvement." According to the statute, an investigation would be about whether McGinty and DiBerardinis should be penalized as felons. If the Morning Call considers such a penalty absurdly excessive, then it shouldn't favor filing a complaint. And if the Morning Call counters that, no matter what the statute says, an investigation wouldn't really lead to jail time for these two, then it's advocating a process that's little more than Kabuki theater - at taxpayer expense. That doesn't sound like "good government" to me.
The Republicans at the heart of this certainly don't mind the theatrics, and they're poised to lop off the heads of two extremely accomplished and dedicated public servants. But if those who are ready to vote against the reconfirmation of McGinty and DiBerardinis can't be reigned in by considerations of decency and common sense, perhaps an appeal to self-interest might be more effective. Because, from the same statutory area being used to target McGinty and DiBerardinis, I note some other interesting sections:
- Restricted activities
j) Voting conflict.--Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein.
- Penalties
(b) Financial interests statement violation.--Any person who violates the provisions of section 1103(d) through (j), 1104 (relating to statement of financial interests required to be filed) or 1105(a) (relating to statement of financial interests) commits a misdemeanor and shall, upon conviction, be sentenced to pay a fine of not more than $1,000 or to imprisonment for not more than one year, or both.
How many Senators voting against McGinty and DiBerardinis could maintain driven snow purity within the context of those sections of the statute? Any citizen can initiate an ethics commission complaint, with a five year statute of limitations. Just, you know, keep that in the background, Senators Pileggi, Folmer, White, et. al.
Previous reports indicated that Rendell hoped to have reconfirmation votes scheduled for McGinty and DiBerardinis as early as next Tuesday. It's hard to tell whether that's still a feasible timeline. But Governor Rendell still appears primed to fight this to the end, and he certainly should be supported in that endeavor.