Tag Archives: appearance of impropriety

I’m as Ethical as Scalia is NOT a Persuasive Argument

A couple of days ago, the Sierra Club, Citizens Action Coalition, Spencer County Citizens for Quality of Life and Save the Valley [update: the organization was Valley Watch, not Save the Valley] filed a petition asking Indiana Supreme Court Justice Mark Massa to recuse himself from hearing a case that will determine the viability of the controversial Rockport coal gasification facility. (I’ve written before about this boondoggle, birthed by political insiders and totally contrary to the free market principles to which the Daniels Administration paid so much verbal homage.)

Not even 20 hours after the petition was filed, Massa issued a ruling denying it. Clearly, the ruling had been written well beforehand–the lawyers who crafted the brief could have saved their (written) breath.

The argument for recusal rested on the long and intimate relationship between Massa and Mark Lubbers, whose personal fortunes are closely tied to the results of the lawsuit, and upon Massa’s friendship with and service to then-governor Mitch Daniels, who rammed the deal through over the qualms of both Republican and Democratic legislators. As columnist Charles Pierce wrote yesterday in his Esquire blog, “Massa couldn’t be more tied into the people who want to build the plant if he came to work every morning in one of those NASCAR firesuits festooned with logos.”

Massa’s ruling relied heavily on Cheney v. United States District Court, the infamous case in which Justice Scalia refused to recuse himself from a pending case despite the fact that he had gone duck hunting with the Vice-President–a named party— while the case was pending. Massa neglected to note that the Indiana Supreme Court, unlike the US Supreme Court, is governed by one of those pesky codes of ethics. (Can we spell “appearance of impropriety”?)

At least he didn’t defend himself by pointing out that Clarence Thomas sits on cases in which his wife has an interest, while he and Lubbers are just best buds. (Actually, relying on Scalia or Thomas for ethical guidance makes me think of that old adage about fish rotting from the head. But I digress.)

In a particularly disingenuous passage, Judge Massa wrote:

“I have a friend who works for General Motors; must I recuse if GM is a party to a case before our court?” he wrote. “All of us on this Court have many friends who are lawyers, some of whom appear before us, including several to whom I am closer and see more regularly than Mr. Lubbers. If mere friendship with these lawyers were enough to trigger disqualification, my colleagues and I would rarely sit as an intact court of five.”

Well Judge, if you had a friend who worked for General Motors, that would be a lot different than having a friend whose continued, highly lucrative employment depends upon a favorable verdict– a friend who got you your first political job 30 years ago, a friend with whom you have subsequently shared many meals and social occasions, a friend who was one of the very few invitees asked to speak at the robing ceremony when you were sworn in as Judge.

I’m disappointed, but not surprised. This is the man who, as a candidate for Marion County Prosecutor, ran an ad asserting that his opponent was unfit for the office because in his private practice he had represented a criminal defendant. (I know several Republican lawyers who had supported Massa until that ad ran, but based on its intellectual dishonesty, instead voted for Terry Curry.)

Massa evidently couldn’t see an appearance of impropriety if it bit him.

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Let’s Make a Deal

Most taxpayers want their government to be run in a businesslike fashion—to operate efficiently and to be careful stewards of tax dollars.  But most of us also understand that government isn’t a business.

So when is it prudent or acceptable for government to invest our tax dollars in for-profit ventures? When do such deals make economic development sense?

I vividly remember the early days of the Hudnut Administration, when downtown Indianapolis was a pretty forlorn place. Businesses were leery of locating in the urban center, and banks and other financial institutions routinely refused to make loans for those few who were willing to do so. The ability of the City to step up, to guarantee those loans and provide infrastructure and other accommodations was crucial to reversing urban decline. The point was to demonstrate to the private market that downtown enterprises could be viable. The trick—and it could be very tricky indeed—was to generate sufficient business activity to allow market forces to take over, without artificially depressing that market, or inadvertently subsidizing some businesses to the detriment of others.

Today, downtown Indianapolis is flourishing. Those early, strategic investments have paid substantial dividends. Municipal loans have largely been repaid, and more importantly, the central city’s tax base has grown substantially.

There are probably cases where public investment in the urban center is still necessary, but many of us who participated in that early redevelopment process are scratching our heads over the Ballard Administration’s proposal to put $98 million dollars (up from an originally announced $86 million) into North of South, a hotel and apartment complex being developed by Buckingham Properties.

The Administration justifies this use of taxpayer dollars (at a time when libraries and public transportation are starving for funds) by pointing out that private lenders all rejected the project as too risky. It doesn’t seem to have occurred to them that those lenders may have had sound business reasons for coming to that conclusion.

Indianapolis has recently added over 1000 downtown hotel rooms; furthermore, hotel bookings in central Indiana declined by 5% during 2010. Why—in the face of excess capacity —would lenders risk financing a hotel project right now?  And why should taxpayers subsidize a hotel that will compete with hotels in which we’ve previously invested?

Local blogger Paul Ogden recently posed a fair question: Why is it too risky to borrow $6 million to buy and install new parking meters, but not too risky to issue $98 million in bonds for a project private lenders wouldn’t support?

Ogden also noted that the project’s lobbyist is Tom John, who just stepped down as Marion County Republican Chairman.

Councilor Ryan Vaughn cast the deciding vote on the ACS parking contract despite being ACS’ lobbyist. More recently, Robert Vane resigned as the Mayor’s Press Secretary and won a no-bid consulting contract with the Capital Improvement Board.

It all looks a bit too cozy.

When there is an appearance of impropriety, taxpayers can be forgiven for questioning questionable deals.