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EAC: The "E" doesn't stand for ethics

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The Election Assistance Commission, created in 2002 by the Help America Vote Act and arising out of the debacle of the 2000 Presidential election, has struggled mightily in its short life to build its bureaucracy, distribute federal money for purchase of new voting machines, and to improve election administration in the country.

Now the fledgling agency is also tasked with accrediting the test laboratories for the HAVA electronic voting machines and finds itself in an ever-increasing tangle of technical specifications, protocols, standards, and other complex matters-all while being burdened with partisan political appointees.

No wonder there has been little time for ethics in government. However, the EAC is trying to find its ethics and has tasked the General Counsel with the search. A visit to the Ethics link at the EAC website informs the public: "The Election Assistance Commission is presently gathering information to be included in this section of the website....Please visit this page again soon to receive the most updated information available."

While the EAC legal team is searching for ethics, maybe the Inspector General has had better luck. Well, actually not. But the EAC Inspector General Curtis Crider did discover the EAC had not complied with the Federal Information Security Management Act.

In an October 2, 2006, memorandum to Thomas Wilkey, EAC Executive Director, Curtis advised that since the EAC was such a small agency, "the impact of its non compliance is minor." Nevertheless, since the matter had to be reported to Congress under federal law, Curtis recommended that Wilkey, "Establish and implement policies and procedures for information security and privacy management."

Now with the new year, the EAC has even more work to do--keeping track of electronic voting machine security testing. Everyone knows what a headache that can be, but the folks at EAC have learned from their own failure to have ethical guidelines and information security policies and procedures.

On January 11, 2007, the EAC issued a Statement Regarding Partisan Political Activities by Voting Machine Manufacturers and Testing Labs and their Employees. "The EAC strongly urges participants in our Voting System Testing and Certification Program to create strict ethics policies to prohibit activities that would create even the appearance of impropriety."

What triggered the sudden interest in ethics by the EAC? Perhaps a letter to Brian Phillips, President of SysTest Labs, also sent on the same day, can offer a clue. Phillips is head of the only EAC approved testing laboratory authorized to conduct voting machine software tests.

EAC Executive Director Wilkey wrote to Phillips, "As you may know, a New York Times article has raised questions concerning perceived partisan activities undertaken by test labs or their employees."

But what is Wilkey actually talking about in his letter to the SysTest honcho? The Denver Post offers a hint. "The move came one month after Brian Phillips, president of SysTest Labs, accepted the invitation of a Florida law firm representing a Republican candidate to witness a recount in a Florida election."

Donetta Davidson, Chair of the EAC, told the Post, "When there's a conflict over an election, like there was in Florida, we don't want (these companies) to be hired by one party or another."

Phillips told the newspaper it was no big deal and that he would stop his commute to Florida. "I observed a public test, which anyone could have observed. I never met the candidate, and the only people I dealt with were with a legal firm."

When SysTest obtained its interim accreditation, it was required to certify under penalty of federal law that the laboratory, "maintains and enforces policies which prevent conflicts of interest or the appearance of conflicts of interest."

The EAC was apparently troubled enough, after media attention, to issue a directive and letter to Phillips over his involvement in the Sarasota "undervote" litigation. Phillips' statement that he traveled to Florida simply to watch a test is disingenuous at best and may well mask forbidden consultation work raising serious ethical questions about the independence of Phillip's testing lab and the willingness of the EAC to actually protect the integrity of America's elections.

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Michael Richardson is a freelance writer based in Boston. Richardson writes about politics, law, nutrition, ethics, and music. Richardson is also a political consultant.

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