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Taking Responsibility for COGEL Awards
Tuesday, December 4th, 2012
Robert Wechsler
Yesterday, at the annual conference of the Council on Governmental Ethics Laws (COGEL), the only association of state and local government ethics professionals, Judge Anthony Wilhoit was given the COGEL Award, which is
given annually to someone who has "made a significant, demonstrable,
and positive contribution to the fields of campaign finance,
elections, ethics, freedom of information or lobbying for a
significant period of time." As the executive director of the
Kentucky Legislative Ethics Commission since 1997, Judge Wilhoit has
certainly made a substantial contribution, although no more than dozens of other executive
directors and other staff members of ethics-related bodies, not to
mention legislators, good government organization leaders, and
academics.
The reason that I am writing about this particular award selection is that COGEL has consistently refused, as an organization, to embrace and spread the most important values of government ethics (such as transparency and ethics program independence). And yet it annually takes a strong position on values when it permits a small committee (on which I sat last year) to select a COGEL Award winner. I believe that it is time to either stop giving out COGEL Awards or start having an organization-wide discussion of values to embrace and spread in a world that has little understanding of government ethics.
Although I do not generally cover state ethics commissions, I have written two blog posts about Judge Wilhoit's commission, both of them very critical. In 2009, I wrote about the effects on ethics enforcement since the state ethics rules were changed in 1996, the year before Judge Wilhoit was hired.
Ethics Program Independence
The changes, which led to the resignation of the Legislative EC's executive director and most of its members, involved the commission's independence. Instead of having EC members nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission, and the Kentucky Registry of Election Finance, the House and Senate decided that they would be nominated by the House and Senate leaders, that is, by the most important individuals under the commission's jurisdiction.
Every time an EC appointed by legislative leaders dismisses an ethics complaint against a legislator, no matter how appropriate the dismissal is, and every time such an EC provides advice that allows a legislator to do something that appears to be in her self-interest, it looks like the EC members are favoring those who nominated them. This is why independence is the most important attribute of an ethics program. Otherwise, an ethics program's trustworthiness can, and will, be questioned again and again.
And yet it does not appear that Judge Wilhoit sought to reobtain independence for his EC. In fact, a 2001 Center for Public Integrity article says that Judge Wilhoit "asserted his confidence that the commission could rule impartially on a matter involving a legislator. 'I think we're pretty independent,' he said." But what an EC or its executive director thinks about its independence and impartiality is irrelevant. What matters is what the public thinks.
By giving Judge Wilhoit the COGEL Award, COGEL appears to be accepting this view of independence over the more responsible view that the former EC members, executive director, and I, among many other government ethics professionals, take.
Self-Initiation of Investigations
The other major change made in 1996 involved EC initiative in opening investigations. In the three years before 1996, when the EC could fully initiate investigations on its own, based on anonymous tips, newspaper stories, or whatever, the EC opened almost thirty investigations. Since Judge Wilhoit was appointed, the commission's limited right to initiate investigations has been applied almost exclusively to campaign finance cases. The result has been almost no successful enforcement proceedings over the following 15 years.
Yes, as Judge Wilhoit says, training and advice are more important than enforcement. But this does not look good. Enforcement proceedings should be rare not because people are afraid to bring them, or feel it would be a waste of time, but rather because an ethics program has been successful in preventing ethical misconduct.
Recommending Ethics Reforms
In a rare finding of a violation last year, which arose from an auditor's investigation, the EC reprimanded and fined a state representative $2,000 (the top fine) for voting on a matter that led to one of his companies getting more than $171,000 in no-bid contracts. Why should a state rep be getting a no-bid contract in the first place? If this is legal, an EC should push to change the law. If a reasonable penalty cannot be applied, an EC should push to raise the fine limit.
Values go from ideas to practice when an EC recommends changes to ethics laws. Many of the Kentucky EC's recommendations have been good. But it has supported neither more independence nor more initiative, nor in the year after the no-bid contract matter did it make a recommendation regarding this important topic nor one to increase the fine limit. What it did recommend, in addition to improvements, was a naive pandering to legislators:
Freedom of Speech
What does it say about a judge that he would seek to place restrictions on freedom of speech, which have been found unconstitutional in some circuits, for a provision that would not even provide the protection it says it will provide? And what does it say about an EC executive director that he would be willing to throw out a legitimate complaint to prevent unpreventable political abuse?
Judge Wilhoit's values regarding freedom of speech are also central to the second situation, which I wrote about just last year. A lawyer and former state senator was angered by a Kentucky Legislative EC dismissal, wrote a letter to the EC, and gave it to reporters. In this letter, the lawyer said he disagreed with the decision and that he felt what occurred was illegal.
A former state court of appeals judge who sat on the EC was enraged, and two days later he filed a complaint against the lawyer with the state bar association. Judge Wilhoit defended this filing, including personally to me.
When an EC makes decisions, it will be criticized. Even its members will be individually criticized. It may not be nice, but it's acceptable in the United States and it should be expected. No EC member should file any sort of complaint against anyone who criticizes the EC's processes, decisions, or members. The EC should respond positively to any valuable criticism, and explain why false statements are false. Beyond the First Amendment free speech issues involved in bringing an action against even a seriously irresponsible critic, doing so is, I feel, a misuse of office.
Judge Wilhoit appears to feel otherwise. His values in this matter differ in important ways from mine. He holds that EC members, even a former judge (like himself), may use their status to retaliate against critics.
Does COGEL as an association embrace this value? No, I don't think it does. I doubt whether this year's Awards Committee members knew about this situation, or even bothered to research or ask if there was any reason Judge Wilhoit should not be given the award.
COGEL Must Take Responsibility
But that is only a guess. By allowing the award to be given, COGEL did say to the world that its highest award is due to someone who steps in to legitimize changes made by legislators to their ethics program, changes that led the EC's executive director and most of its members to resign, changes that included the removal of the EC's independence; to someone who apparently did not try to get the EC back its independence because he does not value this; to someone who would limit a complainant's free speech even though it would protect nobody and might be harmful to the public interest by preventing a legitimate complaint from being heard; to someone who supports EC members retaliating against people critical of EC decisions.
This is a controversial and, I think, damaging statement of values. And whatever COGEL's board, Awards Committee members, or ordinary members knew or believe, COGEL needs to take responsibility for what its award effectively said. Yes, Judge Wilhoit certainly did a lot of good for government ethics over the past 15 years, but at least from what I know, he has also done more bad for government ethics than most people in his sort of position.
I believe this should be the last time COGEL gives a COGEL Award unless the organization sits down and decides it will take affirmative stands on the values that are most important to government ethics and try to spread these values throughout our society. This is what an award does, and COGEL needs to recognize this. If taking responsibility for the distribution of important value statements is not what COGEL wants to do, it should stop giving out COGEL Awards.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The reason that I am writing about this particular award selection is that COGEL has consistently refused, as an organization, to embrace and spread the most important values of government ethics (such as transparency and ethics program independence). And yet it annually takes a strong position on values when it permits a small committee (on which I sat last year) to select a COGEL Award winner. I believe that it is time to either stop giving out COGEL Awards or start having an organization-wide discussion of values to embrace and spread in a world that has little understanding of government ethics.
Although I do not generally cover state ethics commissions, I have written two blog posts about Judge Wilhoit's commission, both of them very critical. In 2009, I wrote about the effects on ethics enforcement since the state ethics rules were changed in 1996, the year before Judge Wilhoit was hired.
Ethics Program Independence
The changes, which led to the resignation of the Legislative EC's executive director and most of its members, involved the commission's independence. Instead of having EC members nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission, and the Kentucky Registry of Election Finance, the House and Senate decided that they would be nominated by the House and Senate leaders, that is, by the most important individuals under the commission's jurisdiction.
Every time an EC appointed by legislative leaders dismisses an ethics complaint against a legislator, no matter how appropriate the dismissal is, and every time such an EC provides advice that allows a legislator to do something that appears to be in her self-interest, it looks like the EC members are favoring those who nominated them. This is why independence is the most important attribute of an ethics program. Otherwise, an ethics program's trustworthiness can, and will, be questioned again and again.
And yet it does not appear that Judge Wilhoit sought to reobtain independence for his EC. In fact, a 2001 Center for Public Integrity article says that Judge Wilhoit "asserted his confidence that the commission could rule impartially on a matter involving a legislator. 'I think we're pretty independent,' he said." But what an EC or its executive director thinks about its independence and impartiality is irrelevant. What matters is what the public thinks.
By giving Judge Wilhoit the COGEL Award, COGEL appears to be accepting this view of independence over the more responsible view that the former EC members, executive director, and I, among many other government ethics professionals, take.
Self-Initiation of Investigations
The other major change made in 1996 involved EC initiative in opening investigations. In the three years before 1996, when the EC could fully initiate investigations on its own, based on anonymous tips, newspaper stories, or whatever, the EC opened almost thirty investigations. Since Judge Wilhoit was appointed, the commission's limited right to initiate investigations has been applied almost exclusively to campaign finance cases. The result has been almost no successful enforcement proceedings over the following 15 years.
Yes, as Judge Wilhoit says, training and advice are more important than enforcement. But this does not look good. Enforcement proceedings should be rare not because people are afraid to bring them, or feel it would be a waste of time, but rather because an ethics program has been successful in preventing ethical misconduct.
Recommending Ethics Reforms
In a rare finding of a violation last year, which arose from an auditor's investigation, the EC reprimanded and fined a state representative $2,000 (the top fine) for voting on a matter that led to one of his companies getting more than $171,000 in no-bid contracts. Why should a state rep be getting a no-bid contract in the first place? If this is legal, an EC should push to change the law. If a reasonable penalty cannot be applied, an EC should push to raise the fine limit.
Values go from ideas to practice when an EC recommends changes to ethics laws. Many of the Kentucky EC's recommendations have been good. But it has supported neither more independence nor more initiative, nor in the year after the no-bid contract matter did it make a recommendation regarding this important topic nor one to increase the fine limit. What it did recommend, in addition to improvements, was a naive pandering to legislators:
Authorize the Legislative Ethics Commission to dismiss a complaint without prejudice if the complaint or preliminary inquiry is publicly disclosed by the complainant, or the complainant comments publicly about the complaint. This would address the problem of a complaint being filed in an election campaign, where a complainant may be attempting to use the complaint process for political purposes.This would not address this problem (1) because the complainant can simply leak the filing of the complaint and comment anonymously on it, and (2) because the complainant could simply refile the complaint immediately after it is dismissed. In any event, allegations can be made without filing a complaint. Finally, a legitimate complaint, which is intended to protect the public trust, should never be thrown out to penalize someone. Once a complaint has been filed, it is no longer the complainant's or the ethics commission's. It is the public's.
Freedom of Speech
What does it say about a judge that he would seek to place restrictions on freedom of speech, which have been found unconstitutional in some circuits, for a provision that would not even provide the protection it says it will provide? And what does it say about an EC executive director that he would be willing to throw out a legitimate complaint to prevent unpreventable political abuse?
Judge Wilhoit's values regarding freedom of speech are also central to the second situation, which I wrote about just last year. A lawyer and former state senator was angered by a Kentucky Legislative EC dismissal, wrote a letter to the EC, and gave it to reporters. In this letter, the lawyer said he disagreed with the decision and that he felt what occurred was illegal.
A former state court of appeals judge who sat on the EC was enraged, and two days later he filed a complaint against the lawyer with the state bar association. Judge Wilhoit defended this filing, including personally to me.
When an EC makes decisions, it will be criticized. Even its members will be individually criticized. It may not be nice, but it's acceptable in the United States and it should be expected. No EC member should file any sort of complaint against anyone who criticizes the EC's processes, decisions, or members. The EC should respond positively to any valuable criticism, and explain why false statements are false. Beyond the First Amendment free speech issues involved in bringing an action against even a seriously irresponsible critic, doing so is, I feel, a misuse of office.
Judge Wilhoit appears to feel otherwise. His values in this matter differ in important ways from mine. He holds that EC members, even a former judge (like himself), may use their status to retaliate against critics.
Does COGEL as an association embrace this value? No, I don't think it does. I doubt whether this year's Awards Committee members knew about this situation, or even bothered to research or ask if there was any reason Judge Wilhoit should not be given the award.
COGEL Must Take Responsibility
But that is only a guess. By allowing the award to be given, COGEL did say to the world that its highest award is due to someone who steps in to legitimize changes made by legislators to their ethics program, changes that led the EC's executive director and most of its members to resign, changes that included the removal of the EC's independence; to someone who apparently did not try to get the EC back its independence because he does not value this; to someone who would limit a complainant's free speech even though it would protect nobody and might be harmful to the public interest by preventing a legitimate complaint from being heard; to someone who supports EC members retaliating against people critical of EC decisions.
This is a controversial and, I think, damaging statement of values. And whatever COGEL's board, Awards Committee members, or ordinary members knew or believe, COGEL needs to take responsibility for what its award effectively said. Yes, Judge Wilhoit certainly did a lot of good for government ethics over the past 15 years, but at least from what I know, he has also done more bad for government ethics than most people in his sort of position.
I believe this should be the last time COGEL gives a COGEL Award unless the organization sits down and decides it will take affirmative stands on the values that are most important to government ethics and try to spread these values throughout our society. This is what an award does, and COGEL needs to recognize this. If taking responsibility for the distribution of important value statements is not what COGEL wants to do, it should stop giving out COGEL Awards.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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