I'm far from an expert here, so I acknowledge that I'm piggybacking on the work of others, such as PennFuture. But plenty of trustworthy people sing the praises of PA DEP Secretary Kathleen McGinty as a forceful advocate for environmental regulation that protects land and public health.
What Pennsylvania Senate Republicans are in the process of doing to McGinty, along with DCNR Secretary Michael DiBerardinis, amounts to a partisan witch hunt. They have manipulated and exaggerated an ethics inquiry as a back-door means to eliminating a roadblock to their anti-environmental agenda.
Sadly, the Republicans have run the table up to this point in terms of framing the debate. Unless momentum shifts quickly, there's a good chance that McGinty will be forced out of her position. It's time to take action and to reframe this debate for legislators and media outlets. It's time to demonstrate the smear campaign for what it is. It's time for McGinty, along with DiBerardinis (likely dragged into this just to disguise the sleaze of the campaign), to continue exemplary work for the Commonwealth.
(Below is my long, convoluted rendering of the background.)
Kathleen McGinty has an extensive resume in terms of public and private sector work on environmental issues. She innovated executive branch environmental policy during the Clinton Administration, and worked closely with Al Gore both in the Senate and in his 2000 Presidential campaign.
In 2003 McGinty assumed her current position, Secretary of the Pennsylvania Department of Environmental Protection - a state-level, cabinet-level position in the administration of governor Ed Rendell. In stark contrast to the federal-level gutting of environmental enforcement on George W. Bush's watch, McGinty has been a scourge of anti-environmental actors. For instance, when the Environmental Protection Agency in 2006 instituted an airborne soot level standard that contradicted the recommendations of its own scientists, McGinty led the way in a multi-state agency lawsuit against the EPA in order to enact a healthier standard.
McGinty has certainly pissed off a lot of Republicans with her advocacy, and the whispers regarding higher office for her puts an even bigger target on her back. So when Governor Rendell, as required by Pennsylvania law, submitted McGinty's name to the State Senate for reconfirmation as DEP Secretary after the commencement of Rendell's second term this year, Republicans were hungry for a way to remove her.
On Friday April 20, the sneaky, dishonest Republican plan to take out McGinty was set into motion. The Philadelphia Daily News published a column by John Baer purportedly about conflict of interest problems arising when state officials oversee grant awards (in a competitive bidding process) to organizations with which the officials' spouses are associated. Baer's examples:
1) The Pennsylvania Environmental Council and its subsidiary winning bids since 2003 for over $1M in funding from DEP, while PEC utilized the consulting services of McGinty's husband, Karl Hausker;
2) The Pennsylvania Horticultural Society winning bids since 2003 for over $500K in funding from the Department of Conservation and Natural Resources, while PHS employed Joan Reilly, the wife of DCNR secretary Michael DiBerardinis.
(Follow-up reporting led to revised figures of $2.6M going to PEC, and of $1.5M going to PHS.)
Senate Majority Leader Dominic Pileggi was shocked - shocked! - by these revelations, which just so happened to occur five days before the original deadline for reconfirmation of McGinty and DiBerardinis. Pileggi and the Republicans whipped up a frenzy over this "serious ethical problem," and enough Democrats - perhaps not having the time to consider an ulterior motive, or perhaps having ulterior motives of their own - bought into this frame, so that reconfiramtion would have been impossible on April 25. So Governor Rendell relented to the Republican leadership, and pulled back his nominations of McGinty and DiBerardinis, while the issues surrounding McGinty's and DiBerardinis' grant oversight were submitted to the state ethics commission. Rendell maintained the ability to resubmit the nominations, with the assurance that the ethics commission would address the issues promptly.
However, once the ethics commission was involved, the Republican ambush kicked into high gear. On Monday the commission issued a unanimous (7-0) prospective advisory opinion holding that McGinty and DiBerardinis "will have a conflict of interest if they take part in awarding future state grants to groups that have financial ties to their spouses." Prospectively, the commission advised that in cases of such potential conflict, the governor can name "a neutral official to give the final approval" for potential grants.
Technically speaking, the opinion was grounded in a reasonable interpetation of the PA statutes covering ethics standards and financial disclosure. The applicable definitions within the statutes are as follows:
"Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated.
"Immediate family." A parent, spouse, child, brother or sister.
The ethics commission stressed that its opinion was not intended to be an assessment of prior conduct by McGinty and DiBerardinis, and that a specific complaint would need to be filed for an investigation of prior conduct to occur.
Of course, Republicans wasted little time in treating it as precisely such an assessment:
[A] spokesman for the Senate's Republican leader, Dominic Pileggi of Delaware County, and at least one other senator said the Ethics Commission appears to have settled that question as well.
''If it's wrong in the future, it was obviously wrong in the past,'' said Sen. Mike Folmer, R-Lebanon.
And the Associated Press helped the Republican spin by raising the spectre of felony indictments for McGinty and DiBerardinis:
A violation of that section of the Ethics Act could bring up to a five-year sentence, a $10,000 fine and restitution.
And even Democrats who should know better are knuckling under, such as LeAnna Washington reportedly
leaning toward a "no" vote on reconfirmation, and Tony Williams completely buying the Republican frame:
"We're here because of ethical considerations," said Sen. Anthony Williams (D., Phila.). "We should get clarity over what they should be doing or not doing."
"We're here because of ethical considerations" my ass.
If the Republicans were honestly interested in the ethical considerations, they'd start with the statutes themselves, and find that, contrary to John Baer's "Seems pretty clear" brushoff, that there are significant trouble spots.
Per the definitions quoted above, a "conflict of interest" can indeed be read to occur when a public official awards a grant to a business with which a spouse, parent, child, or sibling has any relatiionship, however small or tangential. Yet, strictly according to the statutory text, there is no clear way to establish a relative scale of conflict; it appears that
any conflict equals a felony:
- Penalties
(a) Restricted activities violation.--Any person who violates the provisions of section 1103(a), (b) and (c) (relating to restricted activities) commits a felony and shall, upon conviction, be sentenced to pay a fine of not more than $10,000 or to imprisonment for not more than five years, or both.
OK, now let's take this to its ridiculous end:
Hypo #1 - Public Official A awards a grant to University A's hospital, while the Public Official A's daughter, a student at University A, works part time in the food court at University A's student union. A logical reading of Chapter 11 can find that Public Official A committed a felony.
Hypo #2 - Public Official B awards a grant to Company B, a small startup with five employees whose president is Public Offical B's first cousin, as well as the best man at Public Official B's wedding. The grant represents 85% of Company B's income for the fiscal year. No logical reading can result in finding a criminal violation by Public Official B under Chapter 11.
So let's dispense with the ridiculous notion that we're going to be sticklers with the language here, and that we're not going to use some common sense (such as whether the statutory application is a total bastardization of the motive behind ethics law) in figuring out if we have a legitimate conflict of interest.
In McGinty's case, the company receiving the grants paid her husband (Hausker) $3700 in a consulting capacity. The company has been a longstanding participant in the competitive grant application process; in fact, its receipts from DEP dropped 50 percent from the Ridge Administration to the Rendell Administration. There is no evidence of a link between Hausker's compensation from the company and the company's receipts from DEP.
Does anyone with a brain actually think that McGinty was gaming the system for her family's benefit? And, assuming that it would only lead to a rejection of Hausker's comapny for all grants, should a hyper-literal interpretation of ethics law take precedence to the point that a clearly worthy potential recipient is shut out of the process? This is where someone should have suggested a mechanism for independent review like the one proposed in the advisory opinion. Maybe McGinty was wrong for not suggesting it in the prior case; but, on the other hand, even initiating such a review absent any established procedure could have been interpreted as keeping the conflict of interest intact. All of these details are worthy of deliberation by the ethics commission. But, as will be made clear below, the Republicans weren't interested in deliberation, they were interested in "Gotcha!".
The case of DiBerardinis is more of the same: his wife (Reilly) worked in a different company division than the one receiving the grants (for planting trees... like, what a surprise that a horticultural society won). But, according to PennFuture, there's one more neat little detail pertaining to the State Senate's review of DiBerardinis:
[T]hese issues were not raised during their confirmation hearings, even though the Executive Director of the Environmental Resources and Energy Committee (the committee holding the hearings) had information from the Department of Conservation and Natural Resources on these topics. This information was provided 5 weeks before the hearing on Secretary DiBerardinis was held.
So the Republican-controlled Senate had the means to address DiBerardinis' "major" conflict at the time of his reconfirmation hearing. Yet the subject isn't raised until it magically appears in John Baer's column. And how odd... it's matched up with a similar issue concerning McGinty. Funny how it only pops up after a point when it could not be deliberately addressed by the cabinet officials in front of the full Senate. Funny how the one guy who "discovered" this story once worked for Bill Scranton during his '86 gubernatorial campaign against Bob Casey Sr., and who last year derided Junior Casey's campaign so long, it basically took him until Halloween to acknowledge that Santorum had a chance of losing. Yeah, funny how that all works....
Again, it's all about the "Gotcha!" - but really, the Republicans don't care about DiBerardinis, other than his usefulness in making it look like they're actually concerned about ethics, rather than targeting one particular officer. But it can't be concealed. You see it in press reports that, without any logical basis, DiBerardinis "didn't seem to face quite the same uphill battle." You see it in the extreme right blogs like GrassrootsPA, where only McGinty is attributed by photo in their coverage, and where angry rhetoric regarding her "anti-business" tendencies slips out. This is all about McGinty, who is viewed as a real threat by conservatives.
And as ugly as it's been, right now it looks like it's going to work. The Republicans have a 29-21 edge in the State Senate, and, as mentioned before, they had the votes agaisnt reconfirmation before the advisory opinion, with many Democrats reportedly on their side. Governor Rendell has threatened, in the face of the rejection of his nominees, to keep them in their offices in a "temporary" capacity. However, even if Rendell has legal authority to do so, he risks, in doing so, having himself and all Democrats being confined to the low ground on the broad "reform" issue holding prominence after a ground-shifting legislative election in '06. He might, after a Senate rejection, choose to cut the nominees loose as a matter of expedience. Either way, the course of action now is to change the shape of the debate so that McGinty and DiBerardinis can be confirmed on the merits. PennFuture has a form to facilitate e-mailing PA State Senators who will be voting on reconfirmation. Legislative contact information is also available here. And it might be worth making the case to Pennsylvania media outlets - especially nominally liberal ones insisting that their new ownership by a right-wing ideologue has not fundamentally changed them.
Stir up a little shit. Because this Republican power play stinks.