Pay to Play Law Blog : Pay to Play Lawyer & Attorney : Bribery, Campaign Contributions

 A careful read of Commissioner Emma Darnell’s website announcing the resolution shows that someone appears to have inadvertently attached a privileged legal analysis from the Indiana Attorney General to the Indiana Senate to the end of her proposal concluding that a virtually identical resolution, “if enacted by the City of Fort Wayne, would be invalid as an attempt to regulate, without specific statutory authority, conduct which is regulated by a state agency.” (emphasis added)

One can only speculate as to the reason why such a legal opinion would be attached to the proposed Fulton County resolution. One potential possibility would be that the Commission is already concerned that the resolution as proposed is legally invalid. On the off-chance that Commissioner Darnell’s website changes subsequent to this post, here is a screen-grab of the resolution along with the apparently inadvertently attached legal opinion as it was originally circulated.

Without offering any legal advice upon which anyone should rely, it would appear that Georgia’s constitutional and statutory structure mirrors that which concerned the Indiana Attorney General when he analyzed the Fort Wayne pay-to-play proposal. As is the case in Indiana, the Fulton County proposal clearly seeks to regulate conduct related to campaign financing and contributions. As is the case in Indiana, Georgia’s “Home Rule” provisions limit the power of municipalities to matters not preempted by the General Assembly through general law and not specifically enumerated as matters of state authority under O.C.G.A § 36-35-6. Included among those powers reserved to the state are authority over election procedures and campaign finance rules, which are specifically administered by the State Board of Elections and Georgia Government Transparency and Campaign Finance Commission in accordance with the requirements of general law and the state constitution.

In fairness, there are some in Indiana who disagree with the analysis and conclusion reached by Indiana Attorney General Zoeller; including Fort Wayne’s former city attorney. Nonetheless, this would appear to be a good opportunity for Fulton County to slow down, exhale, and reconsider.

For the purposes of determining whether a person has reached the $500 threshold, Commissioner Darnell’s resolution proposes aggregating all contributions or gifts made by an individual, their parents, siblings, spouse, or children as well as by any company that the individual controls or holds a 10% stock interest in. With respect to company contributions and gifts, the proposed resolution would aggregate all contributions or benefits conferred by any “officers, directors, partners, members, or salaried employees of the entity, and of any affiliated or subsidiary entities.”

Yes, you read that right. Under the proposed resolution, a company such as Delta Air Lines would theoretically be debarred from contracting with Fulton County (they have an airport in Atlanta, don’t they?) if even one of its salaried employees pays for a birthday cake for a next door neighbor who just happens to be a Fulton County employee. (Transparency Note: Delta Air Lines is a client of our firm, but this example could just as easily apply to any corporation having any employee who inadvertently makes a $500 campaign contribution or any gift to a County Commissioner or county employee).

As this blog has noted before, well-meaning and good-intentioned efforts to restrict back room dealing almost always get hoisted upon the petard of the broad language necessary to prevent circumvention but predictably results in negative, unintended consequences. The Law of Good Intentions almost always loses out to the  Law of Unintended Consequences.  Under this proposal, compliance costs will skyrocket, as will the likelihood of unnecessary and inefficient bid protest litigation due to inadvertent violations. In light of these potential effects, simple disclosure of all campaign and gift activity in the contracting process strikes me as the much more sensible approach.

I also have concerns that such restrictions will needlessly limit campaign activity and chill political speech inside of Fulton County. The words I wrote two years ago here still ring true to my ear:

While few would argue that the procurement process in Atlanta doesn't need more sunshine, the Common Cause proposal appears to go a few steps to far. Most troublesome is the proposal to prohibit persons who make contributions of over [$500] from bidding on any … contracts for the next year, as the prohibition applies even if the contract in question was not in existence at the time of the contribution. Restricting contribution amounts in this manner would undoubtedly chill the making of political contributions for City of Atlanta elections altogether, as any person or entity with any potential interest in any City contract in the future could not make contributions without the fear of being locked out of all future business. This is the sort of broad restriction that has proven to be problematic in jurisdictions such as Colorado. Similarly problematic is the apparent willingness to consider contributions by spouses and children of contributors in making prohibition determinations. Again, Colorado should serve as a cautionary tale here.

Needless to say, Common Cause Georgia, and many others, do not share my concerns. Whether Fulton County’s proposed resolution passes tomorrow or not, however, the waves of “restriction as reform” continue to hit the beach.