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A Criminal Failure
Tuesday, January 20th, 2009
Robert Wechsler
I hate to harp so often on the problem of ethics matters being handled
by criminal authorities, but when I read an
article in the Nogales (AZ) International
that begins as follows, I get angry.
Such an enormous overexpenditure requires strong accounting controls. But what about the diversion of grant money to his own nonprofit? That certainly belongs before an ethics commission, and there would be no need for a two-year investigation.
I asked some municipal and state ethics professionals for their experiences with criminal vs. civil solutions to problems. Most of them hand over criminal cases to criminal authorities; some are required to do this. But the situation varies. For example, in Austin, corrective personnel action doesn't wait on the criminal process, but this is not an option for elected officials. In Nevada, a public official sometimes settles with the ethics commission and avoids criminal prosecution, but where ethics violations occur during criminal activity, the cases are prosecuted by a district attorney.
In Honolulu, in most cases, criminal authorities prefer that the ethics commission conducts its administrative proceeding while they pursue their case. And the criminal authorities refer to the EC cases involving misconduct that they choose not to prosecute, allowing the EC to review the investigation to see if a case should be pursued.
Chuck Totto, executive director and general counsel to the Honolulu EC, wrote well about the pluses and minuses of the criminal and ethics processes. "Police and prosecutors often have more resources available to handle cases where there are violations of the ethics and criminal laws. On the other hand, there were concerns from actual cases that (1) city officials may not be prosecuted because of the higher standard of proof required for a criminal conviction and (2) city officials are unlikely to receive jail time because white collar criminals rarely do on their first offense. In some cases an administrative process can be speedier and result in a direct employment-related decision (e.g., firing or suspension without pay) that may be more effective than waiting for the criminal wheels to turn. We've seen too many cases where the public is flabbergasted that it takes two years to bring the case to trial and the culprits receive probation with a suspended sentence. In one case, the city employee received a promotion during the pendency of the criminal case."
Other blog entries on this topic include 1, 2, 3.
Robert Wechsler
Director of Research-Retired, City Ethics
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While there was “ample evidence of
incompetence,” it took more than two years for Nils Urman, former Santa
Cruz County Commerce and Economic Development Director, to be cleared of
criminal wrongdoing by the Arizona Attorney General’s Office and the
state auditor general.
This, despite the fact that he approved a falsified invoice and diverted $18,480 in grant money under his control to Nogales Community Development, a non-profit corporation for which he served as president.
Such an enormous overexpenditure requires strong accounting controls. But what about the diversion of grant money to his own nonprofit? That certainly belongs before an ethics commission, and there would be no need for a two-year investigation.
I asked some municipal and state ethics professionals for their experiences with criminal vs. civil solutions to problems. Most of them hand over criminal cases to criminal authorities; some are required to do this. But the situation varies. For example, in Austin, corrective personnel action doesn't wait on the criminal process, but this is not an option for elected officials. In Nevada, a public official sometimes settles with the ethics commission and avoids criminal prosecution, but where ethics violations occur during criminal activity, the cases are prosecuted by a district attorney.
In Honolulu, in most cases, criminal authorities prefer that the ethics commission conducts its administrative proceeding while they pursue their case. And the criminal authorities refer to the EC cases involving misconduct that they choose not to prosecute, allowing the EC to review the investigation to see if a case should be pursued.
Chuck Totto, executive director and general counsel to the Honolulu EC, wrote well about the pluses and minuses of the criminal and ethics processes. "Police and prosecutors often have more resources available to handle cases where there are violations of the ethics and criminal laws. On the other hand, there were concerns from actual cases that (1) city officials may not be prosecuted because of the higher standard of proof required for a criminal conviction and (2) city officials are unlikely to receive jail time because white collar criminals rarely do on their first offense. In some cases an administrative process can be speedier and result in a direct employment-related decision (e.g., firing or suspension without pay) that may be more effective than waiting for the criminal wheels to turn. We've seen too many cases where the public is flabbergasted that it takes two years to bring the case to trial and the culprits receive probation with a suspended sentence. In one case, the city employee received a promotion during the pendency of the criminal case."
Other blog entries on this topic include 1, 2, 3.
Robert Wechsler
Director of Research-Retired, City Ethics
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