making local government more ethical
It's official:  what differentiates us from chimpanzees is not our intelligence, our ability to deal with the abstract, or our ability to tell jokes. According to the decision of a five-member New York state appellate panel yesterday, "Unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights ... that have been afforded to human beings."

In short, rights depend on duties, responsibilities, and accountability. That's pretty much what government ethicists have been saying. The right to run for and hold public office, the right to get a government contract, grant, or permit, the right to lobby government officials, even the right to be a citizen, all these rights come with duties. Without those duties, there are no rights.

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.

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