In November Representative-elect Bill Pownall (R-Gillette) resigned from his position as Sheriff of Campbell County. He did so because of accusations that he sought special treatment to reduce drunk driving charges against his son.
So far, Pownall has not made a move to resign from his legislative seat. That has some government watchdogs wondering whether he has a duty to step down, or whether the House will take disciplinary action against him.
More recently, several lobbyists cried foul after a November meeting of the Legislature’s Joint Corporations Committee in which Chairman Sen. Cale Case (R-Lander) appeared to have a conflict of interest. Case took the side of the Wyoming Liberty Group in opposing a bill requiring more disclosure on spending from independent political groups. Case also serves on the board of the Wyoming Liberty Group, which lobbied against the bill during the meeting.
Two veteran lobbyists say such incidents highlight how Wyoming lawmakers sometimes take a casual attitude toward ethical issues.
“The legislators have the duty to avoid the appearance of impropriety, and a duty of undivided loyalty to state government,” said Larry Wolfe, a retired lobbyist who is still a practicing attorney for the firm Holland & Hart. “Most legislators wouldn’t understand that is the duty imposed on them by law.”
The Joint Corporations Committee tabled a bill Nov. 14 that would have increased disclosure requirements for groups that indirectly advocate for or against candidates. During the past election cycle a number of groups paid for political advertising without expressly advocating for or against the candidates.
Supporters of the bill said it aimed to bring more transparency regarding where such groups get their funding.
Wyoming Liberty Group attorney and lobbyist Steve Klein opposed the bill, saying the reporting requirements represent a threat to free speech. (Read this article by Wyoming Tribune Eagle reporter Trevor Brown for more.)
During the meeting Case disclosed that he is on the board of the Wyoming Liberty Group. He then voiced his support for the group’s position, saying the draft bill wasn’t ready for “prime time.” The committee voted to delay consideration of the bill until after the 2015 session. Case said he did not vote because there were more than enough votes for the motion to pass.
“It wasn’t my motion to make it an interim study,” Case told WyoFile. “There were plenty of votes that supported the position to take this up in the interim, so I never had to say, ‘Do I have a conflict on this?’ and I don’t think I did.”
Wyoming’s conflict of interest laws prohibit public officials from voting on measures in which they have a personal or private interest that would benefit them financially. Under that definition, it could be argued that Case was not in conflict, since he receives no compensation for serving on the board of the Wyoming Liberty Group, and did not vote.
Still, several longtime lobbyists believed Case’s actions created the appearance of a conflict of interest, whether or not he took a vote or stood to gain financially
“The fundamental issue is it happened in a way that looked like Cale was doing the bidding of the Liberty Group,” Wolfe said. “That’s the heart of what legislators are not supposed to act like. … The appearance of impropriety seems really present there.”
Marguerite Herman supported the bill at the meeting as a lobbyist for the League of Women Voters. She took issue with Case playing multiple roles as committee co-chair and Wyoming Liberty Group board member.
“I think there is a circular thing going on there,” Herman said. “This is at best inappropriate, and I think the Wyoming Legislature needs to better define the lines which industry and special interest can cross over.”
While Case doesn’t believe he was in conflict, he can see how others might.
“I see the point that it is arguable, and I am willing to discuss it and willing to be very, very careful,” Case said. “I agree that the appearance of conflict taints the whole system.”
A search of IRS records did not indicate whether Case donates to the Wyoming Liberty Group. However he is listed as a board member who provided two hours per week of work for the organization in 2012 and 2013. As such, he has a fiduciary responsibility to the group. Case has appeared in several videos on the group’s website supporting libertarian positions.
“He is supposed to act in the Liberty Group’s interest, and as a legislator he has (a duty) to act in the interest of the public,” Wolfe said. “He can’t do both those things.”
The Corporations Committee has not yet approved the release of minutes for the Nov. 12-14 meeting. The Legislative Service Office confirmed that no official roll-call vote was taken on the draft bill (LSO 180).
However lawmakers did take an informal voice vote to lay the bill back until the 2015 interim. Sen. Charlie Scott (R-Casper) made the motion, and Rep. Dan Kirkbride (R-Chugwater) seconded. Only Sen. John Hines (R-Gillette) voted against the motion.
Case says his first duty is to his constituents in Fremont County. He has disclosed his connections with the Wyoming Liberty Group in the past, and will be transparent about his involvement in the future, he said. “I promise to be forthright and thoughtful and involve people in this,” he said. “That’s the best I can do.”
Wolfe thinks Case should have done more than just disclose his conflict. When the bill in question came up, Case should have turned the meeting over to his co-chair and stepped out of the room, Wolfe said. Doing so would go above what Wyoming law requires in such situations, Case said. The Wyoming Constitution allows lawmakers to provide their input and expertise in matters of personal interest, so long as they abstain from voting.
Asked if he would abstain from voting on issues supported by the Wyoming Liberty Group in the future, Case said he would have to weigh the situation. “If my involvement as a board member became such that I had to abstain as a legislator, I would have to rethink my involvement,” Case said.
The Legislature faces a second ethical issue in the seating of incoming freshman Representative Bill Pownall. After winning election to the Legislature in November Pownall resigned from his position as Campbell County Sheriff. He did so after allegations that he pressured deputies to reduce charges against his son from drunk driving to pedestrian under the influence.
Before Pownall’s resignation as Sheriff, Gov. Matt Mead directed the Attorney General’s office to pursue removing Pownall. However there seems to be no rule or state statute prohibiting Pownall from serving in another elected office.
It’s not clear whether the House will pursue any disciplinary action against Pownall as a state representative. He is currently listed on the roster of 2015 House members on the Legislature’s website.
Under the Wyoming Constitution and state statute, either house of the Legislature can expel a member with a two-thirds vote. Such actions are usually reserved for corruption, bribery, violence, or disorderly conduct.
Persistent and endemic
Lobbyists who follow Wyoming’s citizen Legislature say it has long had a lax attitude toward ethical issues and conflict of interest.
“I have been watching the legislature for 35 years, and this kind of thing is not uncommon,” Herman said. “It is widely accepted that, ‘We are all just folks, all of us bring close ties with us, and none of us can afford to divorce ourselves from the rest of our lives.’”
Many lawmakers sit on outside boards while also serving as public officials. The late Sen. John Schiffer (R-Kaycee), served for many years as a board member for the Wyoming Chapter of the Nature Conservancy. Rep. Tom Lockhart (R-Casper) joined the board of Arch Coal in 2003 while also serving on the Legislature’s Revenue and Education committees. In 2005 Lockhart became chairman of the Legislature’s House Minerals Committee, a position he maintains today. He stepped down from the Arch Coal board in April 2011, earning $105,000 in compensation from the company that year.
Such intersections have the potential to put lawmakers in the position to benefit the outside organizations they work with.
“It’s a persistent endemic issue for the Wyoming Legislature, and Case’s actions just really bring it to the forefront in a way that I think reflects really poorly on the Legislature,” Wolfe said.
Attorney legislators like Sen. Phil Nicholas (R-Laramie) and others sometimes consider legislation that would affect their clients. In 2012 Sen. Nicholas, who is now Senate president, made a proposal for a land swap in which his friend and client Doug Samuelson was one of the parties involved.
“I’ve made the pledge to not take any compensation, and not to gain from the transaction, and at the same time, I don’t turn my back on my community,” Nicholas told the Associated Press.
The Casper Star-Tribune editorial board said Nicholas needed to drop the land swap idea. The newspaper agreed that Nicholas hadn’t violated any ethics laws, “But even the appearance of a conflict of interest must not be allowed, because it tarnishes the process in the eyes of the public.”
The appearance of impropriety
The high standard of avoiding even the appearance of conflict is backed up by a 1997 brief written by former Wyoming Attorney General William Hill. The document states that lawmakers have a trust relationship with the state that includes fiduciary duties and the responsibility to have “undivided loyalty” to the government.
“(P)ublic confidence in the integrity of the government is fundamental to our system of
representative democracy,” Hill wrote.
For that reason many other states require officials to “scrupulously avoid acts which may create an appearance of misconduct.” In other words, officials should steer clear of anything that merely looks bad.
“It is possible that the appearance of impropriety can undermine the public’s confidence in the lawmaking process just as effectively as an actual impropriety,” Hill wrote.
Hill urged lawmakers to self-police when a potential conflict of interest becomes a matter of controversy: “In situations where … the public perception is that a conflict of interest exists, the legislator should be cognizant of creating the appearance of impropriety, and weigh that as a factor when deciding whether to vote, or to declare a conflict and abstain from voting, on a particular measure.”
Throughout the course of a session, lawmakers regularly declare conflicts of interest, sometimes at the urging of their colleagues. While there is a process for handling ethics complaints made by the public, legislative leaders have the authority to dismiss complaints with no recourse to the whistleblower.
“It’s a system that relies almost exclusively on people’s own judgments and a small degree of peer pressure,” Wolfe said.
The Legislature Wyoming deserves
States that monitor ethics typically take two approaches: an internal ethics committee made up of legislators, or an external ethics commission that monitors state employees and public officials. An ethics commission is typically regarded as the stronger approach. Wyoming is one of eight states that has no outside commission tasked with monitoring and enforcing ethics rules, according to the National Conference of State Legislatures.
In a 2012 report, the Center for Public Integrity ranked states higher if they had agencies or commissions devoted to enforcing state ethics rules across all branches of government. The group gave Wyoming an “F” for government corruption risk, a distinction shared by seven other states. The Center ranked Wyoming 48th out of the 50 states in its Corruption Risk Scorecard. The group is repeating the investigation in 2015.
Wyoming takes great pride in its part-time Legislature of citizen lawmakers who hold other jobs and have deep-rooted associations in their home communities.
“I am very understanding about the citizen nature of the Legislature, but I think that is no excuse for cutting everybody a lot of slack,” Herman said. “We can still have strong lines of interest and observe them.”
For the most part, people in the Wyoming Legislature act honorably and try to do their best, Wolfe said.
“But as politics has changed and become a lot more direct and personal and nastier, these things are changing too, and Wyoming needs to keep asking itself, ‘Do we have the Legislature that we really think we want and the citizens deserve?’” he said.
“In some respects we don’t. That’s the subject of a larger discussion that won’t happen unless people push it to the forefront.”