Well after midnight on the final night of the 2016 General Assembly session, lawmakers quietly approved a bill that would make it more difficult for Georgians to find out if their legislators are making money off the state.
The House member who pushed the change in closed-door conference would not say who asked for it, but it came a few months after The Atlanta Journal-Constitution and the Georgia News Lab reported that House Majority Leader Jon Burns, R-Newington, failed to properly disclose at least $120,000 in state agency payments to his private business.
Burns declined comment. But his Atlanta attorney said the lawmaker has always submitted filings that were consistent with his understanding of the disclosure rules, and that the changes passed by the Legislature were necessary to “clarify the law.”
The AJC has learned that the state ethics commission, which has the power to fine and sanction officials for violations, is currently reviewing Burns’ filings to determine if he’s complied with disclosure laws.
Although Georgia has historically lagged the nation in the strength of its ethics and disclosure provisions, lawmakers have gradually toughened the laws since the first ones were passed in 1986. Senate Bill 199, if signed by Gov. Nathan Deal, would reverse that trend, and ethics watchdogs were quick to take note.
“Our elected officials now have cover to be less forthcoming about their business dealings,” said Brinkley Serkedakis, executive director of Common Cause Georgia.
The version of SB 199 that passed in the final moments of the 2016 legislative session was a mash-up of nearly half a dozen other bills that were cobbled together and pushed through with little oversight or explanation. But it appears to provide Burns some cover.
A conference committee of three House members and three Senators crafted the language of SB 199, after the two chambers passed different versions of the bill. Tucked into Section 8 of the bill is a sentence that says lawmakers and other state officials do not have to report payments from the state on both personal financial disclosure reports and business transaction reports.
Another sentence would ensure that non-statewide officials, such as Burns and other legislators, do not have to disclose payments from political subdivisions of the state, like school districts.
Both respond to issues raised by the AJC/News Lab story.
All lawmakers file financial disclosure forms, which are posted on the state ethics commission’s website. Those easily accessible forms show the businesses lawmakers have an ownership interest in, real estate holdings, employment and spouse information, investment information and, on the last page, payments received by the official or his businesses from the state of Georgia in excess of $10,000.
It is the most readily available form Georgians have to determine the business interests of lawmakers, and if they or their businesses are earning money from the state that they help to govern and to fund. It’s also a quick way to find out if lawmakers have a financial stake in the bills they file or support.
The same website also has a “business transaction” section to search for officials doing business with the state. But Georgians have to know to search for individual lawmakers, and even then, there are questions if what the officials are reporting tells the whole story about how much they are earning from government entities.
Senate Bill 199 essentially says if you file a “business transaction” form, you don’t have to disclose any state earnings on the annual financial disclosure that all legislators file.
That’s exactly what Burns did in late March, just a few days before SB 199 passed the Legislature, when he filed his annual personal financial disclosure statement for 2015. He did not disclose nearly $19,000 in payments to his agribusiness from the Department of Natural Resources in 2015. He did disclose the payments on a business transaction report he filed separately in late January.
In early January, the AJC and Georgia News Lab reported that Burns had not properly disclosed more than $77,000 in DNR payments since taking office in 2005. The AJC story noted that the payments were relevant because Burns sits on the House committee that oversees DNR and was its chairman from 2011 to 2015.
Ethics officials did not request change
After the January story ran, Burns and his attorney argued that any payments he did not disclose on his personal financial disclosure were listed on separate business transaction reports, fulfilling, they said, his obligations.
SB 199 would explicitly sanction that practice.
Burns’ attorney, DeWitt Rogers of Atlanta’s Troutman Sanders, says Burns has done nothing wrong.
“We believe Rep. Burns complied fully with the law’s disclosure requirements before the (January) article was published and remains in full compliance to this day,” Rogers said in a statement.
Rogers said he believes the January story was “based on a misunderstanding of the law” and that it “created considerable confusion among legislators and counsel.”
SB 199, Rogers said, was written to “clarify the law” after the story.
Stefan Ritter, executive secretary of the Government Transparency and Campaign Finance Commission, better known as the ethics commission, told the AJC his office did not request the change. He declined further comment on it.
Serkedakis, with Common Cause, said members of the public who seek financial information about their elected officials shouldn’t have to consult multiple, hard to navigate sources.
“In the interest of transparency, it should be easy for constituents to locate and understand this type of information – and that means disclosing every potential conflict of interest, all in one publicly available document,” she said.
Legislation passed in a hurry
Rep. Micah Gravley, R-Douglasville, who sponsored the original SB 199 in the House, said the language in Section 8 came from his colleague, Rep. Barry Fleming, R-Harlem, a lawyer. It was a confusing time, Gravley said.
“We were in conference committee and I was like, ‘I don’t understand what you’re talking about,’” he said. “I was getting lost in translation.”
Fleming, who requested questions be sent to him via email, did not respond when asked who suggested the language in Section 8. But, he said, current law “may have been confusing. We wanted to make the language plain in the code for the benefit of the general public as well as our members moving forward.”
Rogers, Burns’ attorney, said his client “was not involved” in the conference committee’s discussion although Burns did vote for the bill — as did every other member of the House.
Fleming maintains that current state law does not require payments from the state to be listed on both personal financial disclosures and business transaction reports, and says that SB 199 simply reaffirms what is already law. Robert Lane, staff attorney at the ethics commission, said otherwise.
“The disclosure of payments from the state to a public official on one disclosure report does not satisfy the requirement to disclose the same or substantially similar information on the other disclosure report,” Lane wrote in an email.
Lane was careful, however, to say he was speaking generally and not about Burns or any other public official. Case law on the subject is non-existent, he said, and the commission hasn’t been asked for an advisory opinion on the issue.
Rogers said he and Lane simply have different interpretations of the statute.
“I do read the rather complex statutory provisions that are relevant here differently,” Rogers said.
Clint Murphy, former head of Common Cause Georgia, said whatever the reason, the Legislature went in the wrong direction by cutting the amount of mandatory reporting.
“Any effort to eliminate it being part of the personal financial disclosure is an effort towards less transparency and is not good for our government process,” he said. “I think with any effort to make that less (transparent), it naturally should cause people to question, what’s the motive?
“If the motive is to streamline the amount of paperwork that has to get filled out, well, this is a bad way to do it.”
Bill awaits governor’s action
The January AJC/News Lab story also reported that between 2010 and 2015, Burns failed to disclose at least $43,000 in payments from the Effingham County Board of Education to his agribusiness for purchases of fertilizer, crabgrass treatment, weed killer and other agricultural products.
The story noted that Lane at the ethics commission confirmed that local boards of education are subdivisions of state government and are subject to state disclosure requirements. Lawmakers vote on the state budget each year, and school districts receive more than $8 billion from the state.
After the story ran, the commission said that provision doesn’t apply to all public officers. It depends in part on the legal definition of the word “agency,” a term that holds different meanings in different parts of the Georgia Code.
Currently, “agency” is not defined within the code subsection that deals with personal financial disclosures for non-statewide candidates. The changes proposed in SB 199 would officially define “agency” as excluding political subdivisions of the state of Georgia, an outcome that would be in keeping with Burns’ practice of not disclosing payments from the Effingham Board of Education.
SB 199 now sits on Gov. Deal’s desk. His spokeswoman, Jen Talaber Ryan, said the governor has not decided whether to sign it into law.
“We haven’t covered that in bill review yet but when we do I will let you know,” she said.
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Becca J. G. Godwin, a graduate student in mass communications at Georgia State University, is a participant in the Georgia News Lab, an educational collaboration among Georgia’s leading journalism programs, the AJC and Channel 2 Action News.