The New, Leaky Utah Legislative Ethics Complaint Process

In a recent blog post, I wrote about a federal third circuit decision that a law prohibiting an ethics complainant from announcing the filing of the complaint violates the complainant's first amendment rights. This decision contradicts a second circuit decision that upheld a law prohibiting the announcing of the filing of a judicial ethics complaint.

In this light, the brand new Utah legislative ethics complaint procedures statute flies in the face not only of the first amendment, but also of reason. Here's the relevant section:

JR6-3-102. Privacy of Ethics Complaints -- Contempt -- Enforcement of Finding of Contempt -- Dismissal.
(1) (a) Except as provided in Subsection (1)(b) or (c), a person, including the complainants, the respondent, commission members, a committee chair or vice chair, or staff to the commission or a committee, may not disclose the existence of a complaint, a response, nor any information concerning any alleged violation that is the subject of a complaint. ...
(2) A person who violates the provisions of Subsection (1)(a) is in contempt of the Legislature and proceedings may be initiated to enforce the finding of contempt using the procedures provided in JR6-2-304 and Section 36-14-5.
(3) If the existence of an ethics complaint is publicly disclosed during the period that the Independent Legislative Ethics Commission is reviewing the complaint, the complaint shall be summarily dismissed without prejudice.

Not only does this provision prevent a complainant from saying she filed the complaint, which reasonably prevents the political use of an ethics filing, but it also prevents a respondent from publicly defending himself. And it takes this a step further into the world of absurdity. A respondent, which means a state legislator, can have the information leaked to the press in order to have the complaint automatically dismissed. Since the newspaper cannot be forced to disclose its source, no one could be found in contempt. What a nice way to prevent ethics complaint against legislators from ever going anywhere!

It's amazing that three former judges and a former lieutenant governor actually signed on as members of the new legislative ethics commission, knowing that they could only hand recommendations on to the legislature itself, and knowing how easy it could be to prevent investigations from going forward.

It's not as if they don't recognize the problem. Commission member John Memmott was quoted a week ago by the Salt Lake City Political Buzz Examiner as calling this "a very easy out."

The same article paraphrases the General Counsel for the Legislature as saying that "the media would recognize the motivation behind the leak so it wouldn't happen. If the person behind the leak is the person being investigated, the embarrassment is supposed to be enough to stop them from leaking any information to save them. [General Counsel] added if there was a leak, there would be an additional complaint filed about the leak, and a possible charge of contempt of the Legislature in court."

This assumes that a state legislator would actually leak the information himself, and that the newspaper would disclose the source of the leak. Those are pretty big assumptions.

By the way, a citizens initiative for an independent ethics commission is still alive.

In the meantime, the legislative ethics commission has a big budget of $50,000 a year, not enough to do much damage, or even hire staff. Utah state legislators seem safe from the commission, but not from public accusations or the blogosphere.

Robert Wechsler
Director of Research-Retired, City Ethics

---