making local government more ethical

Standards of Proof in Ethics Enforcement

The standard of proof for determining whether an ethical violation occurred has become an issue in Louisiana's ethics reform. After looking at several local government ethics codes, as well as the ethics codes of the states that have jurisdiction over local government officials, I don't think standards of proof have become enough of an issue in most jurisdictions.

According to a recent editorial in the Shreveport Times, the new Louisiana ethics reform required a "reliable and substantial" standard for proving ethics violations (essentially a "preponderance of the evidence" standard). A state senator, who is a former judge, successfully proposed an amendment raising the standard to "clear and convincing evidence," which is somewhere between preponderance and the criminal standard, "beyond a reasonable doubt." The ethics board administrator, the Public Affairs Research Council and other good government groups felt that this stronger standard would weaken the enforceability of the reforms.

The City Ethics Model Municipal Code recommends a "preponderance of the evidence" standard for the probable cause phase, and a "clear and convincing" standard for the final determination of whether a violation has occurred.

However, more important even than the particular standard used is clearly stating what the standard of proof is.  The Public Affairs Research Council of Louisiana did a survey of the 39 states that have ethics commissions (29 responded).  What they found in their survey is surprisingly very different from what I found when I went directly to the state ethics codes and regulations.

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The Council reports that 18 states use a "preponderance of the evidence" standard or less; 9 use a "clear and convincing" standard; and 2 a "beyond a reasonable doubt" standard.

First of all, the Council ignored the fact that in most jurisdictions there is a two-step process: a finding of probable cause and a finding of violation.  The standard of proof for a finding of probable cause is almost always less than that for a finding of violation. The likely reason that so many states told the Council their standard is a "preponderance of the evidence" is that they don't have any standard for a finding of violation, and "preponderance" is a common standard (or a common interpretation of the standard) for the probable cause phase. Louisiana, on the other hand, does not have a probable cause phase.

That explains one reason why my study gave such different results as the Council's survey. But what explains the fact that most states have no standard for findings of violation? Of 17 states that have jurisdiction over local government officials, I could not find any standard of proof for findings of violation in 11, and in 3 others findings of violation are made elsewhere than the ethics structure. That means that only 3 of these states have clearly stated standards of proof:  Pennsylvania's "clear and convincing proof" (which appears in regulations, not in the statute), West Virginia's "beyond a reasonable doubt" (under Sanctions rather than Final Decision), and Rhode Island's clear placing of the burden on those who allege violations, who must prove a "knowing and willful violation," which is almost impossible.

In the second "beyond a reasonable doubt" state, Alabama, I could not find any stated standard of proof for the second phase of the ethics process, but since most violations are at least misdemeanors to be tried by criminal authorities, it might be assumed that "beyond a reasonable doubt" would be the standard for the criminal trial. But minor violations are dealt with by the Alabama Ethics Commission, and there is no stated standard of proof for these.

As for the probable cause phase, the usual standard of proof is nothing but "probable cause." This is a commonly used standard of proof, but only in the criminal context. It can be found in the Fourth Amendment, and it is the standard by which a police officer has the right to make an arrest or conduct a search.

The U.S. Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), lowered the threshold of probable cause by ruling that a "fair probability" of criminal activity being found could establish probable cause for the issuance of a search warrant. A preponderance of the evidence is not required.

"Probable cause" is often defined as a "reasonable belief that a crime has been committed," but this does not mean more probable than not or "preponderance of the evidence." In fact, in a search warrant context, there is very little evidence available. It's not a particularly evidentiary standard. But it does create the appearance of due process for quasi-criminal ethics proceedings.

I would bet that the legislators who used the term "probable cause" meant a "preponderance of evidence," but used the term "probable cause," because that is what they found in other ethics codes and because of the appearance of Fourth Amendment due process the term provides.  It might seem like a good standard of proof, but when a layperson (and ethics codes are, after all, intended primarily for laypeople) looks up the term, he or she will be confused.  What does an ethics complaint have to do with searches or arrests?

Here are the statistics:  of 17 states that have jurisdiction over local government officials, 2 do not make a probable cause determination; 6 use a "probable cause" standard; 4 use a "reasonable grounds" or "reasonable cause" standard; and the other five employ a variety of standards: probable cause and sufficient evidence to believe, just and sufficient cause, preponderance of the evidence (yes, just one state), information sufficient to make a preliminary finding, and (for criminal referrals only) probable cause to believe a knowing and willful violation.

As for the 12 major cities I looked at, 4 do not make a probable cause determination; 3 use a "probable cause" standard; and the rest employ a variety of standards: alleging facts sufficient to constitute a violation, reasonable basis or cause for believing, cause to believe, and two partly contradictory standards in one city: believe or entertain a strong suspicion as well as evidence sufficient to cause to believe. For the violation phase, 7 do not state a standard of proof; 2 use a "clear and convincing evidence" standard; 3 use a "preponderance of the evidence" standard; and one uses a "supported by at least some evidence that is admissible" standard.

The failure to provide a standard of proof for the violation phase in most jurisdictions places all of the emphasis on the vote of the ethics board or commission, as if they too need no guidance in terms of the proof required.

Ethics codes are intended primarily to give guidance.  The guidance they're intended to give is primarily about ethical conduct, but when it comes to enforcement, shouldn't there also be guidance, for those with possible complaints, for those against whom complaints are brought, and for those who have to make decisions with respect to them?

When the Public Affairs Research Council did its survey, none of the states said "I don't know." And only two of them used the term "probable cause."  This means that the ethics enforcement agency in these states believed that their standards of proof were different from what was stated in their statutes and regulations.  This is a serious due process problem, and I believe it deserves as much attention as has been given in Louisiana to determining what the standard of proof should be.

Robert Wechsler
Director of Research, City Ethics

mike brodinsky (not verified) says:

I am in the process of drafting some new concepts for our code of ethics. I am satisfied with "a preponderance of the evidence" for a violation. But, the standard of proof for a finding of "probable cause" is more tricky. It seems that the board of ethics does not get good guidance as to what probable cause is.

I referred to the CT cases interpreting the PJR statutes. I figured that the burden of proof for "probable cause" that is sufficient to get an attachment of property, should also be good enough to at least get from the closed hearing to the open hearing.

As the CT courts have said that the burden of proof to get an attachment is less than a preponderance of the evidence --- less than 50-50, I have to craft something that is clear and plain language that injects the concept of "possible" but with merit, rather than "probable" which suggests, wrongly, a standard of "more likely than not" (a standard rejected for the purposes of PJR's).

I think I have it after a lot of fussing around, but before I go farther, I thought I'd run it by you.

Any thoughts?

Robert Wechsler says:

The more I think about it, the more I think probable cause should have a standard less than "a preponderance of the evidence." The criminal probable cause standard is certainly less.

You might consider "evidence sufficient to make a preliminary finding," "evidence sufficient to merit a public hearing," or simply "significant evidence."

This sort of standard is by its nature ambiguous, but "a preponderance of the evidence" isn't exactly clear either: evidence is hardly divisible. Such a standard is the basis for deliberation: "Do you think we have enough evidence to go to a public hearing?" is actually the question that should be asked, because that's exactly what is happening. This clearly doesn't merit a finding of a violation, because there hasn't even been a hearing yet. Most of the evidence has not yet been heard. But enough has been presented, and not sufficiently put into question by the respondent, for it to be clearly not a frivolous complaint.

Of course, in many, if not most cases, the question is pretty clear: the official's brother does appear to own the contractor, the official was involved in the transaction, and made no disclosure. There might be questions about what the official knew, or the extent of the brother's ownership, or how well the contract was competitively bid, but there's clearly a conflict situation that should be heard publicly or go to settlement.

Robert Wechsler
Director of Research, City Ethics

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