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EC Independence and Initiative in Kentucky
Wednesday, October 21st, 2009
Update: November 16, 2009 (see below)
On Sunday, the Lexington Herald-Leader took an unflattering look at Kentucky's legislative ethics commission. As in New York State, a central problem appears to be the commission's lack of independence.
Two important changes were made to the commission's independence in 1996, three years after it was created. The first change involved who nominated members. At first, they were nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission, and the Kentucky Registry of Election Finance. Several retired judges were selected.
Outside nominations were eliminated in 1996. House and Senate leaders nominated and appointed the members. Recently, according to the article, they chose former legislators, political party activists, and major campaign contributors.
At first, the EC could initiate investigations on its own, based on anonymous tips, newspaper stories, whatever. In three years, it opened almost thirty investigations. In 1996, the commission lost its right to initiate investigations.
Earl Mackey, the EC's original executive director, is quoted as saying, "Most people are extremely reluctant to come in and sign their name to a complaint against someone who may be very powerful in their community, someone who may control the flow of money locally. There is a very real possibility of reprisal. ... Now the ethics commission can sit there and do nothing in the face of legislative scandals and say, 'Well, nobody swore out a complaint to us.'"
Both Mackey and most of the commissioners resigned when the ethics law was changed. One of the then commissioners said, "They emasculated us when they changed the law. They removed any authority we had to do anything."
The current EC is singing a different song. They emphasize education over enforcement, although legislators are not required to attend training sessions. The current EC chair feels things went too far in the early 90s. "It's not our job to go out and try to seek out these complaints, to look for problems, any more than it's a judge's job to seek out criminal offenses," he is quoted as saying. This is a poor analogy, since there are no ethics police or district attorneys.
The house speaker is happy with the way things are going. "The main reason why there have been few complaints is because Wilhoit and his board and staff have always been accessible to all legislators and have helped steer them down the correct path."
It's wrong to look at enforcement numbers to determine how well an ethics program is going. The speaker is right to focus on good advice over enforcement. But whether this is actually being done is purely subjective and may not actually explain the paucity of complaints.
And even if it did, the fact that officials are seeking advice on a regular basis does not mean that an EC should not have the right to initiate investigations. And because the house speaker appoints EC members, anything the speaker says seems self-serving.
Appearances are important to government ethics. If he wants anyone to believe his ideal portrayal of the EC, he should stop nominating members and ask that his nominees resign at the end of their terms. If he wants to keep control over the ethics process, then he should expect ridicule.
Update: November 16, 2009
General Counsel of the Kentucky Legislative Ethics Commission sent me the commission's November 2009 newsletter). The newsletter notes that enforcement counsel may file a complaint based on anonymous tips, but the recent complaints brought by enforcement counsel seem to deal with campaign finance issues, not conflict issues. It is conflict issues that sometimes require anonymous tips from people afraid of retaliation.
According to General Counsel, the advantage of the 1996 reforms is that "there are fewer (none) investigations initiated at the whim of the Executive Director, and based on evidence-free anonymous allegations." According to the newsletter, enforcement counsel will file a complaint "if there is evidence indicating an ethics statute may have been violated, even if the evidence comes from an anonymous call or letter, or a story in the media." But how can the anonymous call or media story be verified without an investigation?
Looking further into the commission's current activity, I was concerned to find that the commission has made no formal advisory opinion since early in 2008, and that enforcement proceedings are not mentioned on the website (except in meeting minutes, where there are not always even basic descriptions of the cases). Nor are there annual reports online, although they too are mentioned in the minutes. Presumably, there are informal requests for opinions, but officially there is little sign of any activity. In fact, there are minutes for only three commission meetings in 2009, with several meetings having been cancelled.
It is always difficult to know whether a lack of activity reflects a good ethical environment or a process that is either not trusted or poses too many obstacles. The commission takes credit for the lack of convictions of Kentucky legislators, but a lack of criminal misconduct is only partially and indirectly a sign of a good ethics process.
Education and advice are, as the commission points out, more important than enforcement. But when ethics training is not required and formal advisory opinions are not being sought, when the commission does not regularly meet and when annual reports and enforcement actions are not available online, there is at least an appearance problem with the Kentucky legislative ethics commission that should be corrected and which has likely led to the sort of criticism I encountered.
Director of Research, City Ethics