November 24, 2017
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Conflict of interest is nothing new for Maine politicians

By Michael Shepherd, BDN Staff
Updated:
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Gabor Degre | BDN | BDN
The Maine House of Representatives is seen on April 29, 2016.
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AUGUSTA, Maine — Legislative ethics had a rare moment under Maine’s political microscope last week, when Gov. Paul LePage urged a Democratic lawmaker to resign over his $9,000 public outreach job to help pass a 2016 referendum.

It was one of the loudest and latest items on a list of past complaints of conflict from the politicians in Augusta. But you can find a conflict just about anywhere you look in the State House. Whether the institution’s reputation is at risk is a matter of perception.

Legislators earn just more than $24,000 for each two-year session, so many work outside the building in business, teaching, law or other professions, making conflicts of interest “almost inevitable,” according to Maine’s own handbook for lawmakers.

The target of LePage’s ire, third-term Rep. Ryan Tipping, D-Orono, cleared his job on the campaign that passed Question 2, a 3 percent surtax on income over $200,000 to fund education, with the Maine Ethics Commission. He also co-chairs the Legislature’s Taxation Committee.

All of this activity is allowed under the letter of Maine’s conflict-of-interest laws. But they’re toothless, leaving gray areas that allow individual legislators to make a final decision on whether to recuse themselves from certain votes.

Maine’s legislative ethics law seems clear but has been interpreted broadly, and that may be necessary to get good candidates to run for office.

Maine’s ethics laws, enacted in 1975, tell lawmakers to avoid voting on issues on the floor or in committee for which they have conflicts of interest. That list includes the following:

— Taking a job when there’s “a strong possibility” it was given to them or a family member to influence a vote.

— Having a direct financial benefit in a business benefited by a proposed law.

— Accepting gifts from someone affected by a proposed law if the gift aims to affect a vote or action.

At first glance, the Legislature seems to be full of conflicts. For example, five attorneys sit on the Judiciary Committee, and at least four business owners serve on the Taxation Committee.

But to be conflicts, lawmakers’ potential benefits must be distinct from the public or from others in their field of work, so attorneys general have advised that teachers, landlords, insurance policyholders, attorneys and nonprofit employees need not abstain from votes affecting them.

In 2014, House Speaker Mark Eves, D-North Berwick, was accused by Republicans of a conflict related to votes on Medicaid expansion because he worked for a nonprofit accepting Medicaid patients. The ethics commission advised there was no conflict, in part because the benefit to his organization wasn’t “unique and distinct” from other providers.

That’s largely the extent of oversight: The Senate and House of Representatives have ethics committees that can respond to complaints, but the Senate committee met for the first time in its 27-year history last year and the House committee met for the first time in 2009.

Many lawmakers have self-policed by abstaining from floor votes because of conflicts, which has happened at least seven times since 2014, according to research from the Maine Law and Legislative Library.

The last example was Sen. Bill Diamond, D-Windham, who owns a health care staffing company and abstained from voting on a bill that directed the LePage administration to raise reimbursement rates for medical services.

Rep. Karl Ward, R-Dedham, the CEO of Brewer-based Nickerson O’Day, one of Maine’s largest construction firms, has to disclose his firm’s bids on state contracts. Legislators must also disclose sources of income over $2,000 annually.

Ward said that while running for office, he heard from some cynical constituents who questioned his motives for going to Augusta. To mitigate that, he has pledged to donate his legislative salary to district youth programs and schools. He self-funded his campaigns.

Sen. Roger Katz, R-Augusta, called the ethics laws “a sensible rule” and said he hasn’t seen problems in seven years of service.

But Rep. John Martin, D-Eagle Lake, has a broader concern: When first elected to the Legislature in 1964, he said he was one of three legislators under age 30 and “thought I’d gone to a senior citizens’ residential facility.” He had to borrow $1,000 from his brother to finish that session.

Recently, the former House speaker has pushed to end term limits and raise lawmakers’ pay, with the aim of encouraging younger or better candidates to run. Ethics rules going further than they do now could exacerbate problems with recruiting candidates, he said.

“I’m worried that we’re going to get back to that stage,” Martin said of the Augusta he arrived to.

Republicans have targeted Tipping’s committee seat as a key issue, but there are lots of opinions and no clear guidance about whether it’s a problem.

All of this leaves a gray area when it comes to Tipping’s case, which is somewhat enhanced by his post as co-chairman of the Taxation Committee. But even that is up to interpretation.

The Maine Republican Party pounced Tuesday with a news release saying Tipping should leave the committee. The same day, LePage amplified that to say the Democrat should resign.

But Tipping initially cleared his work with the Maine Ethics Commission, whose executive director, Jonathan Wayne, advised he could accept the job as long as it wasn’t for the purpose of influencing his work as a lawmaker.

In an email this week, Wayne said it “seems unlikely” that Tipping would have to recuse himself from legislation around taxes or education funding. But Wayne offered no guidance on Tipping’s committee spot, saying it’s “within the discretion of legislative leadership.”

House Speaker Sara Gideon, D-Freeport, isn’t planning to take any further action. Her spokeswoman, Mary-Erin Casale, said, “We are happy to have him deal with this” as long as the commission’s recommendation stands.

A statement attached to the ethics laws tells lawmakers to “avoid acts of misconduct” or those that “may create an appearance of misconduct,” it also says “the resolution of ethical problems must indeed rest largely in the individual conscience.”

Tipping doesn’t plan to recuse himself from any work, but nothing has changed in his progressive record: He co-sponsored a Gideon bill in 2013 that would have established a 1 percent sales tax to fund education and aid to cities and towns.

“My views on that subject are very clear,” he said. “I want a fair tax code; I want to make sure the state is paying its bills in terms of paying for local schools.”

But Republicans including Ward, who opposed Question 2 and appeared as a business owner at a Maine Chamber of Commerce news conference against it in September at Nickerson O’Day, see it differently.

He said he plans to speak to Wayne about potential ways to tighten ethics law to stop these situations from happening, saying Tipping’s case “very clearly illustrates a significant problem.”

“There’s a point at which you get over to where you go from the white, through the gray to the black,” Ward said, “and where in the gray, you’re more black than white … and this one’s in the black.”

University of Maine political scientist Mark Brewer, who is also an Orono school board member, said “the optics of this don’t look good” to an average observer and that Tipping could mitigate a perception of conflict by recusing himself from committee work on Question 2.

Then again, Brewer also said it would affect Tipping’s reputation in his progressive town and there’s “no even hint that the group in question got some benefit as a result of this that they otherwise wouldn’t have gotten.”

“I do think that his reputation out beyond Orono might take a little bit of a hit on this,” Brewer said. “But in terms of it endangering his service in the Legislature, I can’t see that happening, at least based on what we know now.”


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