FOIA exemptions and generous vacation days are just two ways politicians get campaign help from political appointees
Did a Michigan state representative use his taxpayer-financed office payroll to get political work done rather than official taxpayer business?
Should taxpayers have a right to investigate whether this sort of thing is going on?
How easy is it for the state's politicians to hide such conduct?
These issues are at the heart of a "Request for Investigation" sent by Democrat political consultant Joe DiSano to Michigan House Speaker Andy Dillon, D-Redford Twp. The nature and subject of DiSano's request provides a stark example of just how difficult it is for a private citizen to find out what is being done by the political appointees who are paid with public dollars, yet serve at the pleasure of the state's politicians.
DiSano is asking Dillon to look into the employment status of Glenn Clark, chair of Michigan's 9th Congressional district Republicans, after Clark's name surfaced this summer as an employee on the state payroll of state Rep. Paul Scott, R-Grand Blanc. Scott was then a candidate for the GOP nomination to become Michigan's next Secretary of State.
DiSano sent his request to the Speaker's office on Aug. 18, and made it public knowledge on the Sept. 2 edition of the "Two Guys Named Joe" weekly political podcast that he co-hosts with Republican consultant Joe Munem. DiSano and Munem discovered and questioned the propriety of Clark's name on Scott's public payroll after MichCapCon.com asked for the payroll lists from the Legislature and published them on July 21. (See also: Public Salary Database Puts Political Work of State Employee Under Scrutiny).
DiSano wants the Michigan House to investigate whether Scott hired Clark not for official legislative business, but rather to do political work on his Secretary of State campaign, effectively using taxpayer dollars to subsidize Scott's political ambitions. If DiSano's suspicion regarding Scott is proven, such conduct could be a felony.
But for several reasons relating to the special status of political appointees and limitations in the state's Freedom of Information Act, evidence is hard to come by in these cases and these are difficult charges to prove when lodged against state politicians.
Other than the circumstantial evidence raised by DiSano, and much like the accusations against Dillon in 2008, there are no hard facts definitively pointing to wrongdoing by Clark or Scott.
When asked by MichCapCon.com last month about whether Clark was a paid political consultant working for his Secretary of State race, Scott denied it and stated that any political assistance provided by Clark was a purely voluntary matter for which he received no compensation. Finance reports for Scott's Secretary of State campaign do not indicate any direct payments to Clark. Scott does not dispute that Clark was hired for some part-time work in his Legislative office, but maintained in a news release that Clark performs legitimate legislative business in return for a $13,000 annual salary.
Whether or not Clark is a paid political consultant is a matter in dispute and he has refused to speak with Michigan Capitol Confidential about the matter.
DiSano points out that Clark has also been identified in media accounts as a spokesman for other politicians. MichCapCon.com investigated the matter and found two: GOP congressional candidate Rocky Raczkowski and GOP state senate candidate Kim Meltzer.
But, while Scott asserts that Clark's political assistance to him was purely on a voluntary, non-paid, basis, Meltzer, who paid a political consulting firm $11,500 to promote her campaign, recently told MichCapCon.com that she was of the understanding that Clark's assistance to her was a result of these payments to the consulting firm.
However, a spokesman for Meltzer's consulting firm — Strategic National Campaign Management — says that Meltzer is mistaken about any financial connection regarding help from Clark and their firm. Both Scott and Raczkowski are also Strategic National clients, but the firm maintains that Clark's help to each of these campaigns is also unrelated to Strategic National business.
Regardless, there is nothing inherently illegal about a House employee volunteering on political campaigns, or even collecting an additional paycheck for doing political consulting as a side job. But the political work must be separate from the job being funded by the taxpayers. To prove that a politician or a legislative employee is blurring or crossing this line, the accuser must demonstrate that the political work was being done when the employee was supposed to be "on the clock" working for the taxpayers.
The usual starting point for such an investigation would be to file a Freedom of Information Act request for the names, salaries, job descriptions, time cards, inter-office communications and other evidence showing the work product of a particular public employee. But, while this option is available for investigating politicians and political appointees in local government — and was famously used by the Detroit Free Press to uncover text messages exposing felonious conduct between the former Detroit Mayor and his chief of staff — Michigan's Freedom of Information Act does not apply to political appointees working in the Michigan House, Senate, Governor's office and executive branch agencies at the state level.
Similar laws at the federal level also require members of Congress and the President to be more candid about the facts surrounding the employment status of their political appointees. (See also: Cronyism easier to conceal in state capital than in Washington or Detroit).
While a law enforcement agency or a prosecutor could subpoena the state Legislature for these records, a journalist or other private citizen such as DiSano must rely upon whatever the House of Representatives is willing to tell them about its business operations.
There is a bill pending in the Michigan House that would lift the FOIA exemption as it applies to the names and salaries of political appointees working for state politicians. Both of the major party candidates for governor have said they support and would sign such legislation, and both the Michigan House and Senate have customarily and voluntarily given hard copies of this information to any interested party.
This is how MichCapCon.com obtained the data for employees of the state Legislature.
But the willingness of the Legislature to reveal this information could be revoked at any time. And the custom is not followed by the Office of the Governor, which refused to provide this information on their political appointees to MichCapCon.com, citing the FOIA exemption.
Concerned taxpayers and journalists will also find it exceedingly hard to discern when the state's political appointees are working for the taxpayers or just taking a "personal day off" to do volunteer work for a politician, because each full-time employee of the Michigan House is credited one day off for each ten days of work, or nearly five weeks of "personal time" every year. The open secret behind this extraordinarily generous vacation policy is that staffers are often expected to use a lot of their "vacation" time to do "volunteer" work for their politician bosses.
It is not legal for lawmakers to demand that their staff use vacation days for political work, but the fact that these days are available leads many staffers to conclude that using them for political assistance is a practical requirement for keeping their job. Staffers have a vested interest in getting their particular lawmaker re-elected and winning or holding seats for their political party, and they know that the other side also has these "vacation" days to use for political work.
So, Democrat and Republican staffers alike give up their "vacation" days to keep their team in power. The vacation days carry over from one year to the next. Even assuming an actual two-week vacation each year, each full-time employee with more than two years of service could still have six full work weeks of campaign help available for use during every two-year election cycle.
Additionally, staffers who work hard during campaigns and give a lot of their time are well thought of by the politicians that supervise them. As with any career, it is beneficial to be thought of as a "team player" and the Legislature's vacation policy gives staffers a lot of capital to work with, if they choose to use it that way.
Fending off an attempt to recall him from office during 2008, Dillon was accused of using his legislative staff to obstruct petitioners circulating recall petitions in his district. When challenged on the point by WDIV-TV4 in Detroit, a spokesman for Dillon told the station: "Any Dillon staffer there was using vacation time."
The reply was completely plausible, and the presence of the Dillon staffers could easily have been completely legal, given the large number of vacation days available to the staff and the tradition of using many of those days to render political help to lawmakers.
And in any case, due to the FOIA exemptions noted above, even if the staff were not using their many vacation days to help their boss, the TV station had no way to prove it without the voluntary cooperation of the House of Representatives and the person ultimately in charge of its policy regarding releasing the information: Speaker Andy Dillon.
As a part-time employee, Glenn Clark is not eligible for these vacation days. But his part-time status creates a similar complication for anyone trying to confirm or deny DiSano's suspicion regarding whether or not he did legitimate work on the public payroll. Because he effectively reports to one supervisor, Scott, and is not expected to be working during most of the normal business hours, any explicit political work being done by Clark for Scott can be reported as happening as a volunteer, during hours when he was not on the clock for the taxpayers.
This is precisely what Scott has maintained.
And if DiSano or anyone else wants evidence of how much legitimate work was done by Clark or any other Legislative employee, such as legislation worked on or constituents helped, they'll have to rely on and trust whatever the Legislature is willing to tell them. Information such as this is not subject to FOIA requests by mere taxpayers and private citizens.