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|Ethics changes clearly don't convince critics|
Even before the state's sweeping new ethics laws went into effect, debate broke out over whether, as the governor claims, the state achieved the gold standard or, according to critics, it fell for fool's gold.
There is no argument that the governor and Legislature raised the ethics bar with tougher laws on income disclosure, conflicts of interest and legislative perks. For politicians, the most ominous change was to make transgressors subject to criminal penalties instead of mere civil fines.
But while the rules are tougher, critics charge that lawmakers made enforcement more difficult by raising the standard of proof and by diminishing the authority of the Board of Ethics. Some go so far as to say that ethics enforcement has taken a giant leap backwards.
Because the main point of the ethics exercise was to improve the state's image, it is no small matter to resolve the question: Did the governor get it right or was he duped by loophole-savvy legislators--or, worse, was he in league with them all along?
Much of the argument centers on three words that were quietly substituted for three others in a key ethics bill. The previously used standard of proof, "preponderance of evidence," used in civil cases, was replaced by "clear and convincing," which is closer to "beyond reasonable doubt" used in criminal trials. How much closer was not made clear, because the new standard was amended into the bill without debate.
The former attorney for the Board of Ethics, Grey Sexton, calls the new standard of proof "insurmountable" and predicts that guilty verdicts will be appealed to state courts and litigated endlessly as judges struggle to determine what "clear and convincing" means.
The law's defenders counter that a higher standard of proof is appropriate now that criminal penalties attach. Also, they say, the law limits the time frame for decisions to be appealed.
While the Senate can be faulted for how it passed the bill (not the first time), the new standard doesn't cripple enforcement. The most common ethics charges are fairly cut and dried and follow a paper trail. Either a candidate filed a campaign finance report late or he didn't; a mayor's wife's company did business with city government or it didn't.
Controversial cases often turn on the interpretation of law rather than finding of fact. Under the new set-up, it may take a few cases on appeal for state judges to establish a workable definition of "clear and convincing." But it's hard to imagine those questions so bedeviling jurists that ethics prosecutions grind to a halt.
Ethics prosecutions currently are at a halt, however, because 10 of the 11-member Board of Ethics recently quit. The governor ascribes the resignations to board members not wanting to meet new income disclosure requirements, but some of them object to how the new law emasculates the board's authority.
In putting together his ethics package, the governor accommodated legislators who complained that the Board of Ethics and its staff acted as prosecutor, judge and jury. Under the new law, the board decides which cases are to be prosecuted, but the hearings will be conducted by administrative law judges. They are career state employees, mostly lawyers, who regularly resolve conflicts over agency rules and regulations.
Critics don't like that the ALJs, as they are called, answer to a chief law judge appointed by the governor. Or that the panels of hearing officers will be selected by the Board of Ethics, which this governor is about to appoint two-thirds of its members.
Practically speaking, are we really concerned that chief law judge Ann Wise, a highly respected public servant originally appointed by former Gov. Mike Foster, is going to browbeat hearing officers to go light on politicians, particularly friends of the governor? Anyone who knows the judicious Wise knows that's won't happen.
Or do we fear that this governor will stack the new ethics board with toadies who will subvert the principles on which he has staked his administration? Hardly seems likely.
Not to say that this system of ethics administration is perfect, just as the old one wasn't either. But critics who claim that the state of ethics is worse off than before have yet to make a clear and convincing case.