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Thin line walked by citizen-lawmakers raises concern Levitan's role in incinerator worries some


In the middle of this year's legislative session, a powerful state senator lobbied the governor and two state agencies in a last-ditch effort to derail an incinerator that could take business from a company he's paid to represent.

The state budget was still pending before his Budget and Taxation Committee when Sen. Laurence Levitan contacted Gov. William Donald Schaefer and the natural resources and environment departments on behalf of a law client,Browning-Ferris Industries Inc.

Mr. Levitan was hoping that state officials would block a $360 million incinerator project in Montgomery County.

Environmental organizations and several community groups bitterly opposed the project, concerned about pollutants and the incinerator's cost.

But scrapping the incinerator also would have allowed Browning-Ferris to compete for millions of dollars in trash-hauling services the county would then have needed.

Mr. Levitan, a six-term Democrat from Montgomery, readily discussed the contacts he made on behalf of Browning-Ferris.

They are not illegal under a Maryland law that allows its citizen-lawmakers to represent clients before state agencies as long as they disclose the activity, as Mr. Levitan did.

Many other lawyer-lawmakers also represent clients before the state.

In the end, the senator was not successful. State officials added their approvals to that of the Montgomery County Council, and construction began in March.

But Mr. Levitan's role troubled some Marylanders on both sides of the incinerator issue, particularly because of his power as a budget committee chairman over spending requests made by state agencies.

"I don't want to throw words around like unethical, but it's certainly questionable," said Debbie Levi, president of the North Potomac Citizens Association, which supports the incinerator.

Mr. Levitan's position as a legislator gave him an "unfair advantage" in the dispute, Ms. Levi said. "He's using that as a crowbar to get in."

The senator's role "does make me a little uncomfortable," said County Councilwoman Nancy Dacek, a Republican from western Montgomery County who voted against the incinerator. "He could exert some type of leverage. That's always the concern."

Senator Levitan -- who has been paid upward of $60,000 by Browning-Ferris over the past year representing the corporation's interests before the County Council and state officials -- disagrees.

"Some people can say if you're a legislator, you're not supposed to do those things," Mr. Levitan said. "But I can't survive if I don't practice law. I can't live on $28,000 a year," his legislative salary.

"It's a question of trying to wear two hats. If you wear them, follow the rules."

The senator, who represents about a dozen clients before state agencies each year, said he tells officials that he is calling as a privateattorney and never mentions their budgets in such conversations. Both points are backed up by officials he contacted on behalf of Browning-Ferris.

Mr. Levitan also points out that he has publicly opposed the incinerator, which has long been proposed for his district, "since day one" and years before he was hired by Browning-Ferris.

"I feel very comfortable with representing [the company] on the issue. And I certainly feel comfortable with the calls I made," Mr. Levitan said.

Inherent conflict?

Still, reformers, academics and some officials in other states believe that such a dual role -- both public official and lobbyist for a corporation doing business in one's district -- creates an inherent conflict.

"Certainly the appearance is odorous," said Alan Rosenthal, a Rutgers University political science professor who is writing a book on legislative ethics.

"Our view is that elected officials should not be representing clients before a state agency," said Phil Andrews, executive director of Common Cause of Maryland. "In our view, it's a conflict."

Thirty-seven states have some type of controls on lawmakers who represent clients before state agencies.

Some, like Maryland, simply require disclosure. But 22 states have restrictions about the agencies legislators may appear before in a private capacity and the kinds of issues they may handle.

No states ban the practice, although there is a long-standing prohibition against members of Congress and their employees from representing private individuals before the federal government.

Montgomery County's incinerator proposal became a state issue when, after years of debate, the County Council voted 6-to-3 in December to approve its construction in Dickerson.

It was fought bitterly by some environmental and community groups. In addition, several trash companies, including Browning-Ferris, argued that it would be cheaper for them to haul trash out of the county than for the county to burn it.

But most council members and some other community groups defended the project, noting that it was only one part of a larger waste-management plan. They also said out-of-county hauling was unreliable. Other jurisdictions, for example, could restrict or close the landfills used by the county.

After the council's action, the plan moved to the state Department of the Environment.

Mr. Levitan, who was hired by Browning-Ferris last summer, said that in his calls and meetings with state officials, he told them that the project was a bad idea but that he never urged them to take a particular course of action.

"I told the governor what I thought about the incinerator, that it was a bad investment on the part of Montgomery County," he recalled.

Environmental permit

Mr. Levitan also called the environment department, recalling that he spoke with Secretary Robert Perciasepe about the permit that would allow the project to go forward.

"I was just trying to find out what the timing was, what the status was," Mr. Levitan said. "I was hoping

they wouldn't issue the permit."

For his part, Mr. Perciasepe said he spoke with the senator briefly, knew he was against the project but did not feel pressured to reject it.

The senator also contacted George G. Perdikakis, director of the Maryland Environmental Service, a quasi-public agency under the Department of Natural Resources that helps counties with waste issues.

Mr. Perdikakis is also a member of the Northeast Maryland Waste Disposal Authority, which coordinates financing for disposal facilities and had to approve the bonds for construction of the incinerator.

"He said, 'I am not calling as a senator, I'm calling on behalf of BFI,' " Mr. Perdikakis recalled. "He didn't call me and say, 'Don't do the project.' "

He said the senator urged him to look at the cost of the project and told him the trash disposal could be done more cheaply by hauling the waste out of the county.

Mr. Perdikakis, too, said he did not feel pressured.

He said he told Mr. Levitan that "there was a need for the incinerator in the area."

Asked about the propriety of the contact, Mr. Perdikakis said, "That's a question he's going to have to answer. I'm not going to answer that."

Board approval

Two weeks later, Mr. Perdikakis said he made the motion to approve the project, which was unanimously passed by the authority's six-member board.

"The county told me they felt comfortable with the project. That's why I supported it," he said.

Sen. Julian L. Lapides, a Baltimore Democrat who co-chairs the Joint Committee on Legislative Ethics, said he sees no problem with lawmakers contacting state agencies -- as long as they disclose it.

"There are lots of people who do. I think most of the problems are resolved by the disclosure. . . . Every meeting we have a bundle," he said, noting that the committee at times takes a close look at specific cases.

Mr. Lapides, who also is a lawyer, said he has represented clients on personal injury cases where the state is the insurer, including one case in May 1992.

Mr. Perciasepe, the environment secretary, suggested that such contacts might be intimidating for some government employees.

"It's something that is difficult for a state bureaucrat to deal with," he said.

"It's certainly an area that deserves some review, not just in Maryland but around the country," Mr. Perciasepe said.

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