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Holding Elected Officials to a Higher Standard
Monday, October 12th, 2009
Robert Wechsler
Should elected officials be held to a higher standard than ordinary
people? And if so, who should decide?
These questions are central to a dispute that has been simmering for two years in El Paso. According to an article in the El Paso Times yesterday, the local district attorney would not allow a council member charged with a misdemeanor to participate in a diversion program for first-time offenders, which would have expunged the crime from her record. The reason for doing this was, the DA said, that public officials need to be held to a higher standard.
According to another El Paso Times article, the council member argued before a three-judge appellate court that she was being treated differently. An assistant DA said, "Absolutely she was singled out. That is true. The issue here is whether that is proper. I think it is proper." The appellate court agreed.
A look at the politics of the situation, however, provides a different point of view. The city charter allows removal by the council of a council member who has been convicted of a misdemeanor involving moral turpitude. And, supposedly, the council member is antagonistic to the council majority. Therefore, pursuing her conviction would likely lead to her removal. Treating her as a first-time offender would ensure that she would remain on the council.
After the arrest, the DA appointed a special prosecutor to handle her case, which was the right thing to do, as long as the DA's office removed itself from the case. But the second Times article said that it was the DA who decided not to allow the council member to plea-bargain or to enter the program for first-time offenders. That seems inappropriate. Also, it appears that the DA's office has stayed involved in the process and made the decision to hold the council member to a higher standard.
According to another Times article, a year and a half ago, the council member tried to move the case to another venue, and the DA successfully opposed the motion. Again, this does not seem to be appropriate for a case in which the DA was not to be involved.
In addition, two complaints were filed with the Ethics Review Commission. A violation of the ethics code also allows removal of a council member by the council. It's not clear what happened to the complaints, but the ERC's chair told the Times, "For myself, I'll have to see if the ethics complaint and the charge by the district attorney are one and the same. Then, in my opinion, we should wait until after the criminal case is adjudicated." This is likely what happened, since the city attorney seems to have agreed.
The crime here is the forgery of a letter that allowed the council member an airfare discount because she worked for Federal Express, which she had done until a month before forging the letter from her former supervisor. Somehow the airline learned quickly that she was no longer employed, and at the connecting city the council member paid the entire fare. This is the sort of sneaky thing many people do every day, but it involved forgery rather than a mere lie.
If an isolated crime, it hardly deserves removal of a council member. But it does deserve a quick admission and sincere apology, which do not appear to have occurred. It would seem that, if these were offered, the DA would have had no choice but to put her in a first-time offender program, allowing her to remain on the council. A combination of politics and poor judgment appears to be responsible for what occurred.
But should one local elected official be in a position to hold another local elected official to a higher standard, especially when that higher standard would likely lead to her removal? I don't think so. The charter provision already holds elected officials to a high standard, but that standard is based on criminal conviction. This seems like a very neutral standard, but it depends on lots of things, including a police officer's decision to arrest and a DA's decision to prosecute or settle.
Ethics codes also hold officials to higher standards. Sometimes, in fact, they make a crime an ethics violation, but since one has to wait for a conviction, any ethics proceeding would be redundant. Some codes do make it a violation if there are a series of minor crimes, such as traffic offenses. This seems more appropriate.
When it comes to deciding a council member's removal on the basis of a conviction, perhaps it would be better for a neutral ethics commission to make the decision instead of a polarized council. But I can't imagine any council allowing this.
Robert Wechsler
Director of Research-Retired, City Ethics
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These questions are central to a dispute that has been simmering for two years in El Paso. According to an article in the El Paso Times yesterday, the local district attorney would not allow a council member charged with a misdemeanor to participate in a diversion program for first-time offenders, which would have expunged the crime from her record. The reason for doing this was, the DA said, that public officials need to be held to a higher standard.
According to another El Paso Times article, the council member argued before a three-judge appellate court that she was being treated differently. An assistant DA said, "Absolutely she was singled out. That is true. The issue here is whether that is proper. I think it is proper." The appellate court agreed.
A look at the politics of the situation, however, provides a different point of view. The city charter allows removal by the council of a council member who has been convicted of a misdemeanor involving moral turpitude. And, supposedly, the council member is antagonistic to the council majority. Therefore, pursuing her conviction would likely lead to her removal. Treating her as a first-time offender would ensure that she would remain on the council.
After the arrest, the DA appointed a special prosecutor to handle her case, which was the right thing to do, as long as the DA's office removed itself from the case. But the second Times article said that it was the DA who decided not to allow the council member to plea-bargain or to enter the program for first-time offenders. That seems inappropriate. Also, it appears that the DA's office has stayed involved in the process and made the decision to hold the council member to a higher standard.
According to another Times article, a year and a half ago, the council member tried to move the case to another venue, and the DA successfully opposed the motion. Again, this does not seem to be appropriate for a case in which the DA was not to be involved.
In addition, two complaints were filed with the Ethics Review Commission. A violation of the ethics code also allows removal of a council member by the council. It's not clear what happened to the complaints, but the ERC's chair told the Times, "For myself, I'll have to see if the ethics complaint and the charge by the district attorney are one and the same. Then, in my opinion, we should wait until after the criminal case is adjudicated." This is likely what happened, since the city attorney seems to have agreed.
The crime here is the forgery of a letter that allowed the council member an airfare discount because she worked for Federal Express, which she had done until a month before forging the letter from her former supervisor. Somehow the airline learned quickly that she was no longer employed, and at the connecting city the council member paid the entire fare. This is the sort of sneaky thing many people do every day, but it involved forgery rather than a mere lie.
If an isolated crime, it hardly deserves removal of a council member. But it does deserve a quick admission and sincere apology, which do not appear to have occurred. It would seem that, if these were offered, the DA would have had no choice but to put her in a first-time offender program, allowing her to remain on the council. A combination of politics and poor judgment appears to be responsible for what occurred.
But should one local elected official be in a position to hold another local elected official to a higher standard, especially when that higher standard would likely lead to her removal? I don't think so. The charter provision already holds elected officials to a high standard, but that standard is based on criminal conviction. This seems like a very neutral standard, but it depends on lots of things, including a police officer's decision to arrest and a DA's decision to prosecute or settle.
Ethics codes also hold officials to higher standards. Sometimes, in fact, they make a crime an ethics violation, but since one has to wait for a conviction, any ethics proceeding would be redundant. Some codes do make it a violation if there are a series of minor crimes, such as traffic offenses. This seems more appropriate.
When it comes to deciding a council member's removal on the basis of a conviction, perhaps it would be better for a neutral ethics commission to make the decision instead of a polarized council. But I can't imagine any council allowing this.
Robert Wechsler
Director of Research-Retired, City Ethics
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