making local government more ethical

The Enforcement of Ethics Laws Against Local Government Legislators

The decision of the Louisiana First Circuit Court of Appeal in In re Arnold (May 23, 2008) causes serious problems with respect to ethics enforcement against local government legislators, at least in Louisiana. It opens up a can of worms that I haven't seen discussed (I'd appreciate being alerted to where it has been discussed).

The court decided that the Legislative Privileges and Immunities Clause in the Louisiana Constitution, better known as the Speech or Debate Clause in the U.S. Constitution, prevents an independent ethics board from making decisions regarding state legislators with respect to their actions in a "legitimate legislative sphere," despite the fact that the legislature passed the bill creating the ethics board and approved the members of the ethics board, which were selected by the presidents of private colleges in Louisiana.

In the Arnold case, the decision regarded two legislators' failure to withdraw from participation in a matter that involved the financial interests of family members.

Here's the Speech or Debate Clause language, from Article I, Section 6 of the U.S. Constitution:
    for any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.
Before you think this has nothing to do with local governments, please consider that the Supreme Court has determined that the Speech or Debate Clause (and the common law that preceded it) applies equally to local government legislators. The decisions are Bogan v. Scott-Harris 523 U.S. 44 (1998), which gives absolute immunity from civil liability to local officials performing legislative functions, and Spallone v. United States, 493 U.S. 265 (1990), which gives immunity from a contempt proceeding.

As for criminal proceedings, U.S. v. Helstoski, 442 U.S. 477 (1979), upon which the Louisiana court depends, makes it clear that the Speech or Debate Clause applies equally to criminal cases, including, in this case, political corruption actions.

But it does not appear that the Supreme Court has applied the Speech or Debate Clause to ethics proceedings, especially those specifically approved by the legislature. The issue has not come up at the federal level, because Congress does not provide for independent ethics enforcement.

Institutional Waiver
Can't a legislature waive its rights by passing an ethics code? The Louisiana court applied the standard from the Helstoski decision:  a legislature cannot be considered to have waived its rights unless it can be shown that the waiver was done by an "explicit and unequivocal expression." That is, passing a bill providing for ethics enforcement for all public officials, without creating an exception for legislators, is not sufficiently explicit or unequivocal.

In fact, even such a clear legislative waiver might not be good enough. The Supreme Court in United States v. Brewster,  408 U.S. 501 (1972) (a criminal case), said, "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." I don't believe the Supreme Court has decided this issue, but it has consistently recognized that the Speech or Debate Clause, because it is about individuals, may not be institutionally waivable. Therefore, it is likely that a city council could not waive a city councillor's right not to be prosecuted pursuant to a city ordinance.

The bottom line is that local government ethics laws may not be enforceable by an independent ethics board against local government officials acting in "a legitimate legislative sphere," which would certainly include the enforcement of recusal rules not only in councils, but in other bodies as well, when the activity applies not to just one or a few parties, but more generally, as in many planning and zoning issues.

Distinguishing the Decisions
But are there any differences, for example, between ethics enforcement, on the one hand, and civil or criminal proceedings, on the other hand?  There are two things that can be done here.  One is to distinguish Helstoski and Brewster. Two is to look at the reasons behind the Speech or Debate Clause, and see how they apply to ethics enforcement.

Helstoski and Brewster involve the content and motive of the legislative act, and would require the presentation of evidence about legislative activity, which is not permitted under the Speech or Debate Clause.  Arnold concerns only the fact of the legislative act, and would require no evidence about the content of legislative activity (no questioning of any speech or debate), only recognition of a fact (speaking at all) over which there is no dispute. It does not matter whether the legislators spoke in favor of the relatives, or against them.  The only issue was their withdrawal from participation.  At first blush, this seems disingenuous.  Of course, the rule is there to prevent officials from speaking in favor of their relatives. But doesn't recusal also protect legislators from having to favor the public interest over the interest of their family members?  Recusal rules are a two-edged sword, even though they are usually considered to be one-edged.

In any event, it's not clear that any speech was being questioned by the ethics board, which is what the Speech or Debate Clause prevents. At least in terms of the content of the legislators' speech. It's not clear that a court has determined that the mere fact of speech, whatever its content, is covered by the Speech or Debate Clause. After all, the clause is intended to protect a legislator's obligation to speak for his or her constituents. That's about the public interest. Ethics laws concern conflicts between private and public interest, and that's exactly what the ethics board was determining. It had no desire or need to concern itself with the content of the legislators' speech, which is why no evidence of it -- or questioning of it -- was necessary to reach its conclusion.

Helstoski and Brewster involved generally applicable laws.  Arnold involves a law limited to public officials, that is, to a group that includes legislators.  Frequently, as at the federal level, legislators are totally excluded from ethics laws they themselves pass. Yet the Louisiana Legislature chose not to exclude itself.  Although not "explicit and unequivocal expression," it is certainly an undeniable expression.  No one with a straight face could argue that the legislature did not waive its immunity. Whether it could waive the immunity of individual legislators is another question.

Also see the discussion of separation of powers in the next section, in which I distinguish another aspect of Arnold.

The Reasons Behind the Speech or Debate Clause
There are a lot of reasons given by the Supreme Court for the Speech or Debate Clause.  One especially interesting argument, made in Spallone, is that a legislator must be protected from sanctions, so that when he or she votes, the vote is done purely with respect to the interests of the city, not with respect to the legislator's personal interests.  In this case, the city was ordered to enact an Affordable Housing Ordinance or to pay a "bankrupting fine." If the legislator were to vote for the Ordinance to prevent from paying the fine himself, that would be far worse than voting for the Ordinance to prevent the city from having to pay the same fine. Effectively, if a council member could be found in contempt for not following the law, there would be a conflict of interest between his view of what is best for the city and his personal financial interests. If contempt proceedings could not be brought, the conflict would be between the council member's view of what is best for the city and the city's financial interests, the sort of conflict that is part of the democratic process.

However, in the Louisiana case, there was never the sort of conflict that is part of the democratic process. There was what is considered to be the wrong sort of conflict of interest. And it didn't have to do with a vote. What it had to do with was simply speaking in favor of a bill that would financially aid a family member. This reason for applying the Speech or Debate Clause does not apply to a recusal situation.

A principal argument for the Speech or Debate Clause is that legislators hold and exercise their powers for the public good, and are therefore exempt from all liability for using them mistakenly.  But there's no mistake in this instance.  The public good was already determined by the Legislature, and that was to withdraw from the matter. This definition of the public good would apply whether enforced by an independent board or by a legislature.

Another argument involves the separation of powers:  preventing the judicial and executive branches from getting involved in internal legislative matters. The Louisiana Court of Appeal finds a separation of powers issue in Arnold, treating the ethics board as part of the executive branch. But is it? Its members are not selected by the executive branch, it is not answerable to the governor or any other member of the executive branch. Nor is it part of the judicial branch. Is there a separation of powers issue when a legislature creates an independent body answerable to no one? The Arnold court did not answer this question. But it is clear that an independent ethics board is "another place" than the legislature, pursuant to the Speech or Debate Clause.

A related argument says that the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.  A corollary to this argument is that interference may be political or partisan in motivation, and that no party or view should in any way prevent the free exercise of a legislator's powers. This argument is more difficult to refute under the circumstances of Arnold.  However, the possibility of political or partisan interference exists more when a legislature deals with ethics issues than when the issues are dealt with by a body as independent as the state ethics board. As the Supreme Court said in the Brewster case, "Strong arguments can be made that trials conducted in a Congress with an entrenched majority from one political party could result in far greater harassment than a conventional criminal trial...."

Another argument involves the time and energy required to defend against a suit, which the Supreme Court in Bogan found to be "of particular concern at the local level, where the part-time citizen-legislator remains commonplace. ... And the threat of liability may significantly deter service in local government."  These arguments are very familiar to government ethics professionals. But they are equally applicable when ethics issues are handled by local legislatures.

The Supreme Court followed these arguments with the ultimate argument: "the ultimate check on legislative abuse --- the electoral process ... self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses." So much for ethics laws applying to elected officials.

Here's another argument, made by Kathleen Allen for the Louisiana Board of Ethics in a brief:
    As stated in State v. Township of Lyndhurst, 278 N.J.Super. 192, 650 A.2d 840, “[T]he purpose of the [Privileges and Immunities Clause] is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.” The purpose of the Code of Ethics is to preserve the integrity of the legislative process as well.
Allen also cites similar language in Helstoski. This is important, because the position of the Louisiana legislators seems to be that they are being protected, as if it had something to do with personal rights. And even if it did, personal rights come with responsibilities, and a legislator's responsibility is to act not in his or her private interest, but in the public interest. There's a virtuous circle here, and the ethics code and Speech or Debate Clause are spinning around that circle together. It's only the legal approach to the question that pictures them going in opposite directions. It's difficult to prove that approach is wrong, but as long as you're not a legislator, it certainly appears to be wrongheaded.

So Now What Do We Do?
Here's what the Arnold court concluded:

[W]e reject the Board's argument that our holding will exempt all legislators from the Code of Governmental Ethics when their actions may be within the legislative sphere. On the contrary, our holding herein does not exempt legislators from the duties imposed upon them in the Code; rather it merely provides that any alleged violation of those duties occurring within the legitimate legislative sphere may not be questioned elsewhere other than in the legislature. Thus, pursuant to LSA Const. art III. sec 8, where a legislator's actions within the legitimate legislative sphere, such as speech, debate, and voting on matters before the legislature, constitute an alleged violation of the Code of Governmental Ethics, the Board of Ethics is without jurisdiction to question or punish such action. Nonetheless, the legislator is not exempt from questioning and punishment for those actions. Instead the power to question the legislator in such an instance is within the sole province of the legislature.

A little more than a year ago, I wrote a blog entry on this case (which contains a debate with one of the two legislators) just as the case was being brought, and worried about its implications for recusal. But I didn't check out the Supreme Court cases, which has increased my worries and made them more concrete. What would I say now to a city council working on an ethics code? Would I recommend that, if it wants to give an ethics board jurisdiction over the council, that it express this explicitly and unequivocally?  Or would I say that even this may not be enough, that a particular council member could say that only he or she could make the waiver? Would I recommend that the council try to make a clear definition of what constitutes the "legitimate legislative sphere," providing guidance thereby not only to council members but also to the members of other boards and commissions? Would I act unethically, ignoring the issue altogether?

My guess is that if you described the state of the law to most city attorneys or council members, they would recommend exempting council members from ethics laws, at least to the extent that they are acting in the legitimate legislative sphere.  And since defining this sphere would be difficult, they might choose to exempt themselves totally, which, by chance, is what most legislatures prefer.

One thing that would be very useful is for state and municipal ethics professionals, through COGEL, to come up with a model definition of "legitimate legislative sphere," in order to make it more difficult for state and local legislatures to totally exempt themselves from ethics laws. One very detailed approach to this definition, and the entire concept of legislative immunity, can be found in West Virginia's statutes. It explicitly makes an exception from legislative immunity for the state ethics code.

But the first thing to do is to open this subject up to debate, both in terms of what the law is and how it affects state and local government ethics, and in terms of what can be done in response.

Additional Reading:
The issue is always discussed in terms of state legislators (and usually state constitutions), even though the federal Speech or Debate Clause applies equally to local government legislators.

A newspaper article about a similar 2007 controversy between the Rhode Island Ethics Commission and the state senate president. The senate president appealed to the Superior Court on Speech or Debate grounds, but then settled days later, paying a fine in return for dropping charges based on senate votes, so the issue was never adjudicated).

Later in 2007, according to another article, a suit was brought against the Ethics Commission by a former state senate president on similar grounds (William V. Irons v. Rhode Island Ethics Commission, Superior Court C.A. No. 07-6666). This suit appears to be pending.

A blog entry discussing a possible exception for ethics enforcement to the usual application of the Speech or Debate Clause, relating to the first Rhode Island situation.,

Larry Shapiro on how freedom of information laws are limited by the Speech or Debate Clause, including a look at institutional waiver.

A 2007 Congressional Research Service report on recent developments in Speech or Debate Clause law has a good list of topics the clause applies to and does not apply to, and the relevant cases (pp. 5-7).

An informal advisory opinion of the Hawaii State Ethics Commission on a speech or debate issue. Hawaii's constitutional immunity language is broader than the U.S. Constitution because it specifically includes actions in addition to speech: "No member of the legislature shall be held to answer before any other tribunal for any statement made or any action taken in the exercise of his legislative functions." But the opinion considers federal cases, as well.

A 1996 Kentucky Ethics Commission decision considering what are and are not legislative acts with respect to the Speech or Debate Clause.

Robert Wechsler
Director of Research, City Ethics

Robert Wechsler says:

Texas is the first state I've found that expressly recognizes the immunity of local legislators along with state legislators. This is done in §572.059 of the Government Code. But see §572.053, which prevents state legislators from voting on bills that will help an entity in which they have a controlling interest.

Robert Wechsler
Director of Research, City Ethics

Robert Wechsler says:

This is actually from Mark Davies, Executive Director of the New York City Conflicts of Interest Board.

New York City’s ethics law provides that “[n]o public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.” (NYC Charter section 2604(b)(3).) “A person or firm ‘associated’ with a public servant includes a spouse, domestic partner, child, parent or sibling; a person with whom the public servant has a business or other financial relationship; and each firm in which the public servant has a present or potential interest.” (NYC Charter section 2601(5).)

However, “in the case of an elected official, such action [particularly affecting an interest in a firm] shall not be prohibited, but the elected official shall disclose the interest to the conflicts of interest board, and on the official records of the council or the board of estimate in the case of matters before those bodies….” (NYC Charter section 2604(b)(1)(a).)

The Conflicts of Interest Board (COIB), New York City’s ethics board, has interpreted that exception for elected officials to address their essential legislative functions – e.g., lobbying for, sponsoring, and voting on legislation or lobbying for state legislation – but not, e.g., in their official capacity contacting community groups on behalf of the Councilmember’s private interests or on behalf of the interests of an associated person, such as the Member’s private employer. See COIB Advisory Opinion No. 92-22, 94-28 (Rev). A proviso, however, exists for the legislative exception: it does not apply where the interest itself is prohibited – i.e., where the Councilmember has a position or an ownership interest in a firm doing business with the City.

Thus, where a complaint is lodged against a Councilmember for actions taken that would generally fall within the Speech or Debate Clause, the jurisdiction of the COIB is essentially limited to determining whether the Councilmember’s action fell within his or her essential legislative function (like voting on or sponsoring or lobbying for legislation) and, if so, whether the interest itself was prohibited (e.g., where the Councilmember had a position with the firm whose interests the Councilmember benefitted by his or her vote).

Even if the Board were to find the legislative exception inapplicable because the interest itself was prohibited, I doubt that the COIB would prosecute the case on the basis of the voting (because of speech and debate issues) but would, instead, focus solely on the prohibited interest itself. In addition, as an aside, while the NYC Conflicts of Interest Board (COIB) has the power to initiate an investigation of a Councilmember and hear and determine a complaint against a Councilmember and make a final, public finding of a violation, the COIB has no authority to sanction the Councilmember but must instead forward its findings and recommendation to the Council for its imposition of a penalty, if any. (NYC Charter section 2603(h)(3).)

The City’s ethics law may be found here, and the COIB's advisory opinions are available here,

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