(Update: Both the House and Senate passed HJR 1029 on Wednesday, May 2, 2018.)
For 40 members of the Oklahoma Legislature who are preparing to close out their last regular session this week, one of the final votes they cast will determine what type of employment they are eligible for over the next two years.
If that sounds odd, consider the background that led to HJR 1029, a resolution (embedded below) disapproving seven new Oklahoma Ethics Commission rules that could be voted on as early as today. Among the most controversial for lawmakers is the OEC’s new “cooling off period” that would prohibit legislators from registering as lobbyists or state agency liaisons for a two-year period following the end of their terms.
The OEC has also moved to enact a similar two-year period during which former legislators would be prohibited from making an “attempt to influence” any state agency “regarding any matter in which that individual personally and substantially participated in during his or her term of office.”
While the OEC’s new rules include a “waiver for preexisting relationship,” many current lawmakers — particularly those about to leave office — are pushing to nullify the OEC’s nascent prohibitions.
“No one wants the rules of the game changed after the game has started,” said Sen. AJ Griffin (R-Guthrie), who is not seeking re-election in 2018. “I ran four years ago not knowing that the Ethics Commission was going to try to interfere with my ability to earn a living and support my family as I leave office.”
Asked if her post-Legislature employment plans will require her to register as a lobbyist, Griffin said Tuesday that “we’ll have to wait and see what happens along the way.”
“Before I got here, I worked with organizations that contracted with the state of Oklahoma to take care of kids and families,” Griffin said. “That’s what I want to go do when I leave here. It’s what I was doing before I was elected, and it’s what I want to do after I leave.”
To that end, Griffin and a woman named Monica Miller formed Strategic Innovations of Oklahoma in January. Described online as a non-profit consulting firm dedicated to helping organizations fulfill their missions, SIO touts a tagline of “building better Oklahoma businesses.”
“I will not register as a lobbyist based on that business venture,” said Griffin, who is also the registered agent for Griffin Planning & Consulting.
Asked what she might do if the House and Senate fail to pass HJR 1029 to reject the Ethics Commission’s “cooling off period,” the senator replied directly.
“I’ll resign before we adjourn sine die. I have to do that for my family and my future,” she said, elaborating on why she believed the OEC rule makes no sense. “We vote on things that have everything to do with everything in the state of Oklahoma. (…) Pretty much every business venture, every service array, everything is involved in what happens with live at the Capitol.
“I’m not really sure why the Ethics Commission finds it necessary to limit the pool of qualified people willing to run for office in our state.”
Cockroft: ‘It’s a tremendous concern’
Whether the functional result of the OEC’s “cooling off period” will have the extreme effects that Griffin and some other Capitol insiders fear, the outcome of HJR 1029 will immediately affect at least Griffin and Rep. Josh Cockroft (R-Wanette), another lawmaker who has chosen not to seek re-election.
Proposed ‘cooling off period’ troubles lobbyists, lawmakers by William W. Savage III
Cockroft confirmed Tuesday that he is considering employment as a lobbyist next year.
“It’s something I’ve thought through for the last several years — kind of my next step after the Legislature,” he said. “There have been issues that I’ve been passionate about, and I want to continue my influence past my service in the Legislature.”
Cockroft said he felt the time was right to pursue other professional endeavors outside of elected office, largely owing to his young family. (Lawmaker pay was cut 8.8 percent in November.)
“I think it’s a tremendous concern,” he said of how the “cooling off period” would limit lawmaker employment options. “I enjoy this atmosphere enough to want to be involved, and [lobbying] is a way that I can to continue to affect policies and move our state forward.”
Cockroft said he had not considered resigning his seat prior to sine die if the “cooling off period” remains intact.
Kemp: ‘Running state government is not a game’
HJR 1029’s potential disapproval of the new Ethics Commission rules comes amid agency concerns about its own legislative appropriations moving forward.
In an article by Nolan Clay published Tuesday morning on NewsOK.com, Oklahoma Ethics Commission chairman John C. Hawkins said he was “appalled” by cuts to the agency’s budget and considered the forced use of $710,351 in OEC-collected fees to be “retaliation.” (The commission raised its fees $50 annually on all filers in June 2017.)
Oklahoma Ethics Commission hikes fee $50 on all filers by William W. Savage III
Asked about the Legislature’s budgetary decision on OEC, Rep. John Pfeiffer (R-Orlando) told NonDoc on Tuesday that “sweeping” agency revolving funds is a “normal function of state government.”
“It’s not retribution when we go in and sweep money out of a revolving fund that has grown too large,” Pfeiffer said. “It has happened to many of the agencies [overseen by] my committee year after year. It wasn’t retribution when it happened to [the Department of Environmental Quality], it wasn’t retribution when it happened to the Corporation Commission.”
But OEC executive director Ashley Kemp said Tuesday night that the budgetary situation for her agency is problematic, and she provided a three-page letter hand-delivered to House Appropriations and Budget Committee Chairman Kevin Wallace (R-Wellston) on Thursday, April 26.
As for concerns about the “cooling off period,” Kemp took issue with Griffin’s metaphor about rules being changed in the middle of a game.
“With regard to those individuals who say the Ethics Commission is changing the rules of the game mid-game, I say running state government is not a game. It’s an honor and a public service,” Kemp said via e-mail. “We are guests of the Oklahoma citizenry trusted with one job — to advance the interests of the state.”
She said the public should always know that lawmakers’ decisions while in office are free from personal considerations of how they might benefit professionally after leaving office.
“There should never be a question as to whether the interest being advanced is the state’s — or the state officer’s,” Kemp wrote. “A two-year waiting period before being able to engage in certain activity is already a safeguard built in the Constitution applicable to legislators. The ethics rule strengthens the safeguard, modernizes it to reflect current government and applies it consistently across all elected officers and agency heads.”
An ‘adversarial’ relationship?
With Kemp, Hawkins and the rest of the Oklahoma Ethics Commission already hearing complaints about the “cooling off period” and pushing back against an unfriendly FY 2019 state appropriation, frustration with the agency also appears to be growing from campaign consultants.
In recent months, several political operatives, political candidates and lobbyists have reached out to NonDoc with unsolicited criticism about the agency. Lawmakers have bemoaned a perceived increase in compliance orders for campaign committees, with some saying recent $1,000 fines levied against the committee of former Rep. David Brumbaugh are exemplative of a regulatory system detached from reality.
Brumbaugh died April 15, 2017.
“It feels like, as soon as we call, they start hunting for issues to be wrong in your ethics reports,” said one Republican campaign consultant who asked to remain anonymous for fear of retribution. “Instead of there being a mutual relationship to try to follow the ethics rules, it feels like there is an adversarial relationship with the Ethics Commission.
“I guess it does come down to being nicer.”
A second campaign consultant also requested anonymity to speak freely about industry frustrations with the Ethics Commission.
“They’re just out to get people now,” said the second consultant, who runs campaigns for Democrats. “You’re giving us all compliance orders for really simple mistakes that should be, ‘Hey, can you fix this?’ as opposed to slapping a $1,000 fine on somebody.”
Both consultants said most candidates, campaigns and committees are trying to do the right thing when it comes to filing ethics reports.
“It’s gotten out of hand, and I think there’s an abuse of power,” the second consultant said. “It’s both sides of the aisle. We all talk, and we’re all irritated.”
But Kemp countered, saying that the vast majority of people who call her agency for help express appreciation for the assistance provided.
“Commission staff answers questions on the rules all day long every day. Staff will put advice in writing, stand by the advice given, and we go to great lengths to ensure the advice is consistent,” Kemp said. “Compliance orders are issued for things like late fees and failing to file. The commission does everything it can to notify filers of due dates.”
She said the responsibility to meet the Ethics Commission’s requirements ultimately falls upon filers themselves.
“Every filer, committee officer, lobbyist and designated filing agent receives a seven-day filing due notice, a one-day filing due notice, and a one-day post deadline notice when reports have not yet been received,” Kemp said. “Whether a report is filed on time, and a compliance order issued, is up to the filer.”