making local government more ethical
The Speech or Debate Clause of the U.S. Constitution protects activities within the "legislative sphere" from being heard outside the legislature, and prevents the introduction of evidence of legislative activity in any such hearing. A recent brief from the U.S. House Ways and Means Committee in S.E.C. v. Ways and Means Committee argues (on pp. 30, 34-37) that communications between industry lobbyists and the staff director of the committee's subcommittee on health are privileged and may not be subpoenaed by the SEC in an investigation of alleged insider trading-related leaks.

Rhode Island's lawmakers really know how to protect themselves. They have fought hard and long to effectively preserve their immunity from state ethics commission jurisdiction. However, with pressure on them to recommend to their constituents a constitutional amendment that would give the EC jurisdiction over them, despite the state's Speech in (sic) Debate Clause, they have planted a bomb in their proposed amendment that will ensure that even the state's good government organizations would oppose it (and that few ordinary citizens would understand what all the fuss was about).

What the state legislature did was to add in a de novo review process, which would allow any state or local official the EC found in violation of the state ethics code to seek a new court trial. The court would not be able to consider the EC's factual findings. In other words, instead of a right to appeal an EC ruling (where the court would determine whether the EC had done anything inappropriate), all officials would get a second chance to argue the facts and the law, and to have their case decided by a judge who would likely care far less about government ethics and have less expertise than the EC.

Court decisions, especially when combined with criminal enforcement of ethics violations, can be very harmful to local government ethics. The court in a Monterey County case involving a serious §1090 conflict of interest matter that officials were not only aware of, but appear to have helped create, has used two recent California court decisions to limit prosecution to just one official. Recently, the official's last-ditch effort to dismiss the charges on the basis of an entrapment argument failed, according to an article in yesterday's Monterey Herald. In fact, a judge barred the official from calling anyone, including his colleagues, to testify in a preliminary hearing on the entrapment defense.

This blog has been closely following cases where the legislative immunity defense has been used in government ethics proceedings. This week, the same issue arose with respect to an open records proceeding in Wisconsin. According to an article posted on the Madison Isthmus site yesterday, Wisconsin's attorney general has argued in an open records proceeding that a state senator is immune from a suit based on the state's open records law throughout her term in office, pursuant to state constitutional provision Article IV, Section 15, which provides that members of the state legislature "shall not be subject to any civil process, during the session of the Legislature."

A poor and disconcerting judicial decision on local legislative immunity came down on May 24 from the U.S. District Court for the District of Kansas, Kickapoo Tribe v. Black.

The tribe made the argument in its brief that a watershed district board's members should not be able to raise a defense of legislative immunity when (1) two of them owned property in the project area under consideration by the board, and (2) board members participated in activities that made them appear to be seriously biased, including, with the aid of the Kansas Farm Bureau, lobbying trips to Washington, D.C., and letter writing campaigns to (a) convince local municipal and county governments to oppose the project, and (b) to sway public opinion against the project.

Last September, I wrote a blog post about the attempt by District of Columbia council members to block a subpoena by employing a legislative immunity defense. The case involves retaliation against a whistleblower who had alleged improper council input in the awarding of a lottery contract.

On Monday, the federal district court for the District of Columbia decided that the council members (one of whom is now mayor) are required to testify about matters relating only to retaliation. However, the basis for this decision was solely that "efforts to exhort" the executive branch do not fit under the D.C. legislative immunity law's definition of "legislative duties."