“The type and formula of most schemes of philanthropy or humanitarianism is this: A and B put their heads together to decide what C shall be made to do for D. The radical vice of all these schemes, from a sociological point of view, is that C is not allowed a voice in the matter, and his position, character, and interests, as well as the ultimate effects on society through C's interests, are entirely overlooked. I call C the Forgotten Man.”
-William Graham Sumner, quoted in The Forgotten Man, by Amity Shlaes.
Perhaps the most awkward moment of my career came in the Summer of 2015. During the weekly Monday morning public meeting of the Board of County Commissioners for which I served as the legal advisor, I sat in my usual place at the end of the dais, next to a county commissioner I had butted heads with in the six months I had been on the job. None of that was new. What was new about this particular Monday meeting was that this same commissioner had been indicted the previous week on various public corruption charges, stemming from a years-long investigation that predated my time as the Board’s attorney.
The awkwardness was occasioned by the Board having asked me to explain the legal ramifications of the indictment and advise them what could be done to limit any further damage to the county by the commissioner, who remained in office. I wrote my conclusions in a very frank letter criticizing the commissioner, and read it aloud to a packed room of concerned citizens, reporters, and a few television cameras. All while the man I was condemning sat about a foot away from me.
I say it was awkward, but the truth is I only anticipated it would be. As I began to write my letter, and when I read it at the meeting, I found my uneasiness melting away. This man had abused his office, stolen from taxpayers like myself, and caused the community to go through several wrenching years of controversy and convulsion. He deserved to be called to account, and I did not pull any punches.
I thought of this experience after reading three seemingly unrelated news stories last week, although the connection undergirding them may not be immediately apparent.
Story 1: a county commissioner and his former road foreman in Osage County were charged with bid rigging and embezzlement of public property. Unfortunately, the allegations are familiar to anyone who has watched county government in Oklahoma through the years: county-owned equipment and labor were used to work on private property. This is perhaps the most common and least sophisticated form of public corruption in local government. If you are a crooked local elected official, there are more profitable schemes out there, but this one is tried and true and usually goes undetected.
I used to teach trainings around the state to county elected officials about their legal obligations. I always emphasized that county owned (meaning taxpayer paid-for) equipment should never be used on private property or for private gain. I wasn’t breaking any news with this admonition. If one bright line rule is known by county elected officials, it’s that with very few exceptions, it is illegal to use county equipment on private property. Yet some commissioners do it anyway, and every so often one is caught and charged with a crime.
There is also a common defense offered by those who are caught engaging in such activity: “Everyone else was doing it, too!” Usually this defense is only hinted at, but the Osage County road foreman said the quiet part out loud in a statement released to the media: “The dump trailer was a trailer that was up at the county shop that everyone used. . . after my house burnt down I borrowed it to remove debris from the fire.” (emphasis added). What he left out, according to investigators, is that he “borrowed” the trailer for two years.
Story 2: a single day after the Osage County criminal charges were filed, the Oklahoma House of Representatives passed a bill that allows employees of counties, cities, and school districts to use public property and labor to benefit private non-profit organizations. According to the bill’s author, the measure was requested by officials with the Tulsa County government.
This bill would authorize activities by county officials that are functionally indistinguishable from those of the criminal defendants in Osage county, even if they are motivated by altruism. The bill allows public property and labor to be directed to the benefit of private parties. It would allow county workers, while on the clock and being paid by taxpayers, to serve private interests instead of performing the public functions they are paid to do.
Here I must make the obligatory qualification that of course some non-profits do great work, and I’m sure everyone’s heart is in the right place, and of course I am not opposed to helping “the kids.” I’m not actually the Grinch who stole Christmas.
With that tiresome qualification out of the way, let’s call this what it is: Tulsa County’s elected officials want to take their citizens’ money by force and use it to support private organizations who manage to convince the elected officials their cause is worthy. Whatever good deeds the private groups do with the money, this sounds disturbingly similar to a county commissioner allowing his employee to use county equipment to clean up the debris left after his home burned down. I’m sure that cause sounded worthy, too.
Besides being wrong, directing taxpayer funds to private interests in such a manner also violates the Oklahoma Constitution, which has what’s known as a “gift clause.” Essentially, the clause prohibits the government from giving public property to private organizations. It was intended to prevent all manner of government giveaways, and at one time in our history did just that, but the courts have watered down the provision over time, rendering it much less effective at preventing cronyism. Even with a watered down interpretation of the gift clause, I am skeptical this bill passes constitutional muster.
Story 3: The Oklahoman reports that taxpayers may be forced to subsidize some of the most politically-connected, wealthy, and legally-protected oligarchies in the United States (the preceding adjectives are, of course, related) under a measure introduced in the Oklahoma Senate. The bill as written would set up grants to be given to airports in the state, which would then use the money to provide “minimum revenue guarantees for specific new routes” to airline companies, whether or not the new routes are profitable. Apparently, some economic development types believe the state does not have enough direct flights to other cities, and instead of pondering whether there is a reason for that (hint: it has to do with supply and demand), they proposed an all-too common strategy—paying airlines with tax dollars to open new routes.
One significant caveat: the Oklahoman story failed to mention that the author of the legislation remarked in committee that, despite the clear language in the bill, he does not support appropriating public money for this purpose, and that private dollars would fund the grants made to airports. It is difficult to imagine private funders would be willing to hand money over to the airlines, but I take him at his word that this is his intent. Perhaps the language will be amended to make sure no tax dollars are used, but that is not how the legislation is presently written. The title was stricken from the bill, which is legi-speak for saying the thing is a work in progress and likely to change, so we’ll put this one in the “wait and see” category.
Even if the legislation changes, the news story includes a revealing quote: “we're still working on some language. We just want to make sure that we're not making the airports compete against each other.” Indeed, the bill as written actually goes further than that: it shields the airlines themselves from competition, providing that “grants may not be used to . . . recruit a second carrier to an airport-pair.” If the legislation is intended to limit competition, that is troubling in it’s own right, even if private funding is used.
These three stories obviously differ in material respects. I’m certainly not suggesting that the legislators who voted for these bills are guilty of the immorality displayed by county officials who outright steal from their constituents. Most legislators genuinely believe they are doing right by the public when they pursue these types of measures. Some simply don’t think that deeply about an innocuous-sounding proposal to help non-profits or increase airline routes at Oklahoma airports, and vote yes without considering what they are really voting for.
I am suggesting that a legislator could only believe such cronyism constitutes the proper exercise of his job duties when operating in an environment that has so lost its bearing as to take everyone’s interests into account except for the people paying for these programs. I am suggesting that the mentality in government is warped and wrong-headed, even if good-hearted. I am suggesting that far from being at the center of public officials’ concerns, the taxpayer is the Forgotten Man, out on the periphery. And picking up the check.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.
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