The ethics behind the Miami lawmaker trip

We published this report yesterday about a school choice group that paid for N.C. House Speaker Thom Tillis and a bipartisan group of lawmakers to learn about a controversial tax credit scholarship program in Miami.

A big unanswered question is whether the trip is allowed under North Carolina’s strict lobbying laws, which ban lobbyists from giving anything of value under most situations.

The crux seems to be what the purpose of the trip was — if it was to educate, then it’s okay. But if the trip’s goal was to influence lawmakers, then it’s not an allowable exception to the gift ban.

Bob Phillips of the government watchdog group Common Cause said he believes the trip violates ethics laws.

Parents for Educational Freedom in North Carolina maintains the trip was okay, because it was an educational trip about the Florida program that gives companies state credits when they donate money to send low-income children to private schools. The program worries many supporters of public education, because it diverts needed tax revenue away from public schools to a private school system that isn’t accountable to taxpayers.

The group has made no secret that it wants to bring the program here, and PEFNC director Darrell Allison said in a podcast on an education reform website that the Florida trip could lead to the North Carolina General Assembly bringing the tax credit program here.

Allison justified the trip in March with a 2008 ethics advisory letter it got for a different trip to Florida, but did not seek prior clearance from the State Ethics Commission for the March trip.

I asked PEFNC for a copy of that 2008 advisory letter on May 2, but was never provided a copy.

Allison did give a copy to WRAL’s Mark Binker yesterday, and you can see the letter here, as well as the entire WRAL post here. (And, to throw up one more link, you can also see some of the public records related to the trip that I used here.)

The advisory letter clearly show that PEFNC got the okay for the 2008 trip, but is limited to only that trip.

From the 2008 letter:

PEFNC will need to report the total amount it spends for this trip on it (sic) lobbyist principal report that it is required to file with the Secretary of State’s Office because, as we discussed, as well as being educational this trip is also to influence these participating legislators to support legislation in North Carolina similar to the Florida legislation that established tax credits for these special needs schools, known as the McKay Scholarship Schools.

The state ethics law has been tweaked since 2008, and that’s one of the reasons why the State Ethics Commission cautions lobbying groups from assuming that because a trip or event was okay one year, it’ll be allowable in the future.

Perry Newsom, the director of the State Ethics Commission, said each exception to the lobbying gift ban is made on a case-by-case basis.

Newsom would only talk generally about ethics law, but not specifically about the PEFNC trips because of a general policy to refrain from public comment about matters that could come in front of the bipartisan commission.

“Every opinion is very, very fact specific,” Newsom said. “You have changes in facts, you have changes in the law, and any of those could cause a different end result.”

In general, the state’s ethics and lobbying law bans all gifts with monetary value connected to lobbying. Exceptions do exist, and one of them is if a meeting is deemed to be educational.

Figuring out if a trip is educational, or intended to influence, isn’t as easy a process as one would think. The law doesn’t define precisely what an educational trip is, leaving the bipartisan State Ethics Commission to hammer out their own guidelines. The commission receives more questions about the lobbying gift ban than anything else, Newsom said.

Some basic, but not all, guidelines the commission uses is to see if the meeting is announced ahead of time, is open to the public or a large number of people, and if it would seem to be educational to a reasonable person. (Click here to read the state statutes that spell out the law.)

And then, if the meeting does end up being educational and the lobbying gift ban is lifted, then the groups have to disclose the financial costs in lobbing reports filed with the N.C. Secretary of  State’s Office.Lawmakers and public servants have to report what they received in the economic interest statements they file annually at the ethics commission.

But if trips or meetings don’t end up being educational, it could leave both lawmakers and lobbyists in trouble if the lobbying group paid for meals, trips or other expenses.

Consequences for violating the laws are different for the recipients of gifts (lawmakers and public servants) or the gift-givers (lobbyists), Perry said. Legislators and public servants could be reprimanded, or even be removed from office or position if the violation is particularly egregious.

Punishment tends to be much harsher for the gift givers. There’s a potential fine of $5,000 per gift (so if 10 legislators got a meal they weren’t supposed to, that could add up to $50,000). Or the case could be referred to a district attorney for criminal prosecution as well, Newsom said.

That’s why Newsom recommends asking ahead of time. Better to be safe than sorry.

Feel free to share any thoughts or comments below.

5 Comments

  1. Dallas Woodhouse

    May 19, 2012 at 10:22 am

    The orginal policy watch article appears to incorrectly state the law, The primary purpose has to educational but it is legal to advocate for your cause.

    Also people are required to follow the law. They do not have to seek permission from the State Ethics Commission to follow the law.

  2. Sarah Ovaska

    May 19, 2012 at 4:31 pm

    @ Dallas. The original article did state the ethics law allows for trips to be paid for by lobbyist principals if it is educational. And, you’re right, people can advocate for their causes. They just can’t anything of monetary value to that lobbying. The education v. Influence call gets made by the ethics commission, and there isn’t a requirement to get an opinion ahead of time. But, in this case, PEFNC produced a memo purporting it was legitimate without checking with the agency that makes those call. People can view the situation how they wish, but the public certainly has a right to see how policies are made, and know when a group pays for lawmakers to be exposed to one side of an issue.

  3. Sarah Ovaska

    May 19, 2012 at 4:37 pm

    Excuse the typos, I’m typing on an iPhone.

  4. david esmay

    May 19, 2012 at 11:19 pm

    They couldn’t talk to PEFNC in North Carolina? Hell, it would have been cheaper to buy their votes here.

  5. [...] Freedom in North Carolina,” which flew 11 North Carolina legislators to Miami in March. The organization says the trip was “educational” and not a violation of the state’s ban on gifts to [...]