Messy mix of ethics rules, privatization

Former state Civil Service director Herb Sumrall, for the most part, has kept a low profile since retiring as the chief of state government’s employment agency in 1996.

But what he’s been observing caused enough angst to prompt him to go before the state Civil Service Commission with a warning.

The climate is ripe for political cronyism and the spoils system to creep back into Louisiana government — the very thing Civil Service was created to squelch, Sumrall said.

Sumrall said the state Constitution established the commission and gave classified employees job protection in exchange for not participating in political activity. The constitutional provision stops solicitation of contributions for political purposes or use of a person’s position to punish or coerce political action by a classified employee.

Sumrall said the move to privatizaton is troublesome. Owners and employees of private companies taking over functions traditionally performed by state employees are free to contribute to campaigns and participate in them, potentially opening the door for a return to the not-so-good old days.

Sumrall isn’t alone in his concerns about the ramifications of this new and expanding relationship.

State ethics officials have been struggling of late on the issue of just when do employees of a private company become public employees for purposes of compliance with state conflict of interest, nepotism, abuse of office and other ethics laws. The board is looking at one situation at a time and specific circumstances.

The Public Affairs Research Council has been lobbying for some clarity, not only for purposes of ethics but public records laws.

Legislators too have asked questions as the state turned over operations of its public hospital system to the private sector. What kind of public accountability will there be?

Currently, a public employee subject to the ethics code is defined as anyone, whether compensated or not, who is engaged in the performance of a government function.

More and more traditional government functions are being turned over to private entities, whether it be the privatization of prisons, the management of public hospitals or professional services contracts for lawyers, engineers, certified public accountants, architects and the like.

There’s potential landmines in all of those arrangements.

That’s why the Ethics Board and PAR have been pressing for a definition of what constitutes “a governmental function” because today a lot is left open to interpretation.

“It’s an extremely difficult issue but it’s not a new problem. It just so happens with all the privatization going on the question keeps coming up more and more,” said PAR president Robert Travis Scott.

“In an age of privatization at the local and state level, it’s even more important to have a good consensus and understanding of what this key term really means,” he added.

PAR has opposed exceptions from the ethics code for whole classes of professionals, saying it “invites too many possibilities for abuse of good ethics standards” and could result “in the further erosion of ethics laws intended to hold accountable those who conduct the public’s business.”

“If they are performing a governmental function and don’t have these safeguards you are basically taking a step backward in public accountability,” said Scott.

“We should prevent a situation in which a state or local government would be able to contract with private firms for the purpose of running a government program or operation without accountability. Likewise, we would like to avoid situations in which a government is hiring new employees under the guise of a ‘contract’ with individuals for the purpose of evading the ethics laws,” Scott said.

Key is coming up with a good definition of government function in this continuing push to privatize.

Marsha Shuler covers state ethics issues for The Advocate.