Is it Unethical for Legislators to Get Discounts?

Steven A (not me) commented on the story about the Baranof offering discount hotel rates for legislators during the special sessions. Would it be ethical for a legislator to accept.

This is one of the topics I actually know something about, so let me try to answer.

While a lot of ethics experts tend to focus on conflict of interest as a terrible thing, my concern is with the consequences of conflicts of interest. If you say that a conflict of interest is bad, then every legislator is bad because they all have situations where their personal obligations come into conflict with their professional obligations. Especially in Alaska. If no problems are likely to arise from the conflict and the appearance of a conflict is not going to raise questions among the public, then it's probably ok. But mind you, this is for relatively minor things - a legislator votes to remove fees for fishing licenses for active military knowing that his brother-in-law will now be eligible for a free fishing license. This is minor because it affects a large class of people of whom the brother-in-law is a mere blip. And second, because the cost of a fishing license is only $24. If he were voting to build a road that would go right by his brother-in-law's cabin and greatly increase the value of that cabin and land, that would be a different story.

The two key problematic consequences of conflicts of interest are:

• Undue Gain
• Improper Influence

Due gain is the compensation legislators get, by law and/or policy, in exchange for the work they do as legislators. This would include things like salary, health benefits, per diem, travel expenses, etc. The assumption is that the compensation is appropriate for the work and thus extra payments should not be accepted from clients to get one's work done.

Thus Undue gain is any benefit they get above that, or benefits that go to immediate relatives. Minor amounts for getting free food at a company party or a promotional calendar are generally not an issue assuming the value is minimal.

Improper influence refers to the introduction of factors or criteria not normally considered in a decision, a variance from the law, standard operating procedures, or even professional standards. So, not following procedural rules in order to favor a friend or relative or employer would fit here. This standard is easier to apply to career civil servants who work within policy guidelines. For legislators it is a little less clear because legislators make the law and can change the law. But clearly, voting a certain way on a bill because a lobbyist has offered you a job or your daughter a job if you vote yes, is improper influence.

Corruption often involves a combination of undue gain in return for improper influence.

So, with those standards in mind, would a legislators be unethical if they accepted a discount room at the Baranof during the special session?

Is there undue gain? As I understand the deal, the Baranof offered the legislature, as a whole, this special rate. The legislators need a place to stay. The cost of the room is paid for by the per-diem the legislators receive. In some ways, this is like a bid to provide services to the state rather than to individual legislators. This may also be motivated by the hotel's interest in having high profile guests that will bring other customers to the hotel. Other hotels are free to make competing offers. The hotel is still making money, though it is possible they may be turning away more profitable guests. While you can look at this different ways, and find ways to show there is gain - you could argue with lower hotel bills, the legislators get to pocket the difference between the hotel bill and their per diem - but you could just as easily say they have to have a place to stay and it's in the state's best interest to get the best deals on hotel rooms that it can. So, because it is open and transparent, because it is a provision of a service the legislature needs at a competitive market price, because it is offered to all legislators not directly to each individual legislator, but through the legislative office, I would not consider this undue gain. I met with the manager of the Baranof Monday and had a quick lunch with him Tuesday (in the interest of full disclosure) so in part I'm making this call based on my assessment of his candor in our conversations.

Is there improper influence? Basically, is this discount really a bribe to get the legislators to vote in favor of a particular piece of legislation or to influence any official decisions that legislators have to make? I think this would be a real stretch to demonstrate. If you find a problem with this, then every vendor that offered a good price in a bid for a contract with the state could be accused of improper influence if there was any legislation that might affect that company. One could argue that the Baranof is doing this to convince legislators that finding hotel space in Juneau is not a problem as a way to influence their vote on any future bills to move the capital out of Juneau. But every Juneau business could be accused of that if they offered a good deal or did things that made things more convenient for legislators. Besides, the company that owns the Baranof Hotel also owns the Westmark hotel in Anchorage. So they potentially benefit if the capital is move to Anchorage.

So, all in all, using these conceptual standards - undue gain and improper influence - I would say there is no ethical problem with the Baranof, or any other hotel, offering discount rates to legislators. If they offered money losing rates, or free rooms, or only offered special services to key legislators who were working on legislations that would affect the hotel, it would be different, but even there, especially in the off season, getting the rooms filled may bring profitable business to the bar and restaurants in the hotel.

Second, there doesn't appear any particular official action that the Hotel is trying influence by this either, except perhaps the long term goal of keeping the capital in Juneau. So I don't see any improper influence. Again, having spoken to the manager gives me information that may affect my judgment. I just don't see him as having that kind of motive.

So overall, I would give this a green light. Furthermore, individual legislators could legitimately say that the offer came to them through the legislative office which implied that this was something acceptable, though if the office forwarded an obviosuly illegal offer, that would not be an excuse.

I've answered this using some general ethical concepts that are the major ethical problems for public administrators and politicians. Another approach, and one that legislators should take too, would be to go through the State ethics laws and test this against their prohibitions. In fact, if I were a legislator, I would go to the legislative ethics office and check with them if I had any questions.

One last word. Going to the ethics office might not be enough. The three Alaska legislators convicted last year of corruption were all convicted on Federal charges, so knowing the specifics of the federal law that a state legislator could violate would also be useful.