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Rhode Island Oral Arguments: On Inherent Conflicts in the Ethics Process
Thursday, May 14th, 2009
Yesterday, the Rhode Island Supreme Court held oral arguments on the
appeal of the RI legislative immunity decision. I want to focus on two
important issues that arose in the oral arguments, according to an
article in the Providence Journal.
But first I want to share with you a photo from the Journal (photographer: Mary Murphy)
that shows something I never thought I'd see: a protest sign against
the Speech or Debate Clause (Speech in
Debate in R.I.) in the context of government ethics. (click on attachment below to see the photo)
Due Process and Inherent Conflicts
The first issue raised in the oral arguments involves due process. One of the justices asked an ethics commission attorney, “Does it trouble you that [the official] never gets a trial before an impartial body? It’s before the body accusing him.” According to the article, the former legislator challenging the EC's jurisdiction over him said this was the most "poignant moment" for him. “The silence was deafening. My experience has taught me that due process is surely challenged in a structure like that.”
The commission attorney was interrupted before she could respond, so this question remained rhetorical. One problem with the question is that it was not quite accurate. The EC usually does not accuse the official before it (a completely unrelated complainant does this, as in the RI case); the EC only finds a complaint worthy of being heard. Similarly, a district attorney determines whether it is worth having criminal charges heard, charges it formulates itself, creating more of an inherent conflict than the usual ethics situation.
Also, the relationship between police and DA is much cozier than the relationship between complainant and EC staff, which is usually nonexistent. There are certainly more inherent conflicts in the criminal situation.
And just as most criminal matters are settled, so are most ethics matters (or at least they should be). In criminal matters, the settlement is made not with the body that will hear or has heard the matter, but with the prosecution. In ethics matters, settlements are made with the prosecution (commission staff) and then approved by the body that has heard or would have heard the matter, the commission. So far, the ethics situation has more due process than the criminal situation.
Only when an ethics matter goes to a hearing is there possibly less due process and more of an inherent conflict. One, there is no jury. But what is there? In most cases, there are people chosen by government officials (as in RI) who hear cases against government officials. On its face, EC members' sympathies would be with government officials more than juries' sympathies would be with the average criminal defendant. No due process problem there.
In some cases, EC members are not chosen by government officials, but by independent people. Then the EC would consist of independent individuals, much like a jury. No due process problem there.
The second issue is the most important. EC staff acts as prosecution while the EC acts as judge and jury. This is the central problem with the typical ethics process. Even though one might believe that EC members are biased toward government officials, they are also biased toward the prosecution, who work for them, who supply them with expertise and information, and with whom they are personally familiar. They are likely more trusted than officials' lawyers, as well.
In other words, this is an administrative situation, which requires a lower level of due process. Why should this be allowed? Because officials are not being accused of crimes. They are only being accused of not dealing responsibly with conflicts of interest (as in the RI case), of not providing sufficient disclosure, of giving contracts to relatives, and things like this. They will not go to prison, they will not be fined that much, if at all (especially in local governments), they will not lose their positions (except, possibly, indirectly), and they have every opportunity to admit their failures to take responsibility and provide whatever restitution they can.
Criminal due process is simply not required in government ethics, and it would make the system unworkable and extremely expensive. Would government officials truly prefer to be prosecuted for their ethics violations (other than their getting a beyond a reasonable doubt burden of proof)? Do they truly believe this would further the public interest? An important purpose of ethics enforcement is to create a system short of prosecution to deal with problems before they become of criminal severity.
Bribery and the Speech or Debate Clause
This leads right in to the second issue. Counsel for the charged former State Senate presdient said as an example of how the Speech in Debate Clause works, “A legislator can be convicted of bribery but the proof can’t be the vote. The vote is protected.”
Ever try to convict an official of taking money for a vote without being able to tell the jury how the official voted? When the vote's protected, so is the bribery, in most cases.
In any event, bribery is a crime, not an ethics violation. Taking unauthorized gifts, no matter what the vote, is an ethics violation. But you won't go to prison for it. And note that evidence of a vote is not required. That's one reason why it's so much easier to deal with ethics violations than criminal violations. And why the ethics process should be preserved, with full jurisdiction over legislators. It's in the public interest.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Due Process and Inherent Conflicts
The first issue raised in the oral arguments involves due process. One of the justices asked an ethics commission attorney, “Does it trouble you that [the official] never gets a trial before an impartial body? It’s before the body accusing him.” According to the article, the former legislator challenging the EC's jurisdiction over him said this was the most "poignant moment" for him. “The silence was deafening. My experience has taught me that due process is surely challenged in a structure like that.”
The commission attorney was interrupted before she could respond, so this question remained rhetorical. One problem with the question is that it was not quite accurate. The EC usually does not accuse the official before it (a completely unrelated complainant does this, as in the RI case); the EC only finds a complaint worthy of being heard. Similarly, a district attorney determines whether it is worth having criminal charges heard, charges it formulates itself, creating more of an inherent conflict than the usual ethics situation.
Also, the relationship between police and DA is much cozier than the relationship between complainant and EC staff, which is usually nonexistent. There are certainly more inherent conflicts in the criminal situation.
And just as most criminal matters are settled, so are most ethics matters (or at least they should be). In criminal matters, the settlement is made not with the body that will hear or has heard the matter, but with the prosecution. In ethics matters, settlements are made with the prosecution (commission staff) and then approved by the body that has heard or would have heard the matter, the commission. So far, the ethics situation has more due process than the criminal situation.
Only when an ethics matter goes to a hearing is there possibly less due process and more of an inherent conflict. One, there is no jury. But what is there? In most cases, there are people chosen by government officials (as in RI) who hear cases against government officials. On its face, EC members' sympathies would be with government officials more than juries' sympathies would be with the average criminal defendant. No due process problem there.
In some cases, EC members are not chosen by government officials, but by independent people. Then the EC would consist of independent individuals, much like a jury. No due process problem there.
The second issue is the most important. EC staff acts as prosecution while the EC acts as judge and jury. This is the central problem with the typical ethics process. Even though one might believe that EC members are biased toward government officials, they are also biased toward the prosecution, who work for them, who supply them with expertise and information, and with whom they are personally familiar. They are likely more trusted than officials' lawyers, as well.
In other words, this is an administrative situation, which requires a lower level of due process. Why should this be allowed? Because officials are not being accused of crimes. They are only being accused of not dealing responsibly with conflicts of interest (as in the RI case), of not providing sufficient disclosure, of giving contracts to relatives, and things like this. They will not go to prison, they will not be fined that much, if at all (especially in local governments), they will not lose their positions (except, possibly, indirectly), and they have every opportunity to admit their failures to take responsibility and provide whatever restitution they can.
Criminal due process is simply not required in government ethics, and it would make the system unworkable and extremely expensive. Would government officials truly prefer to be prosecuted for their ethics violations (other than their getting a beyond a reasonable doubt burden of proof)? Do they truly believe this would further the public interest? An important purpose of ethics enforcement is to create a system short of prosecution to deal with problems before they become of criminal severity.
Bribery and the Speech or Debate Clause
This leads right in to the second issue. Counsel for the charged former State Senate presdient said as an example of how the Speech in Debate Clause works, “A legislator can be convicted of bribery but the proof can’t be the vote. The vote is protected.”
Ever try to convict an official of taking money for a vote without being able to tell the jury how the official voted? When the vote's protected, so is the bribery, in most cases.
In any event, bribery is a crime, not an ethics violation. Taking unauthorized gifts, no matter what the vote, is an ethics violation. But you won't go to prison for it. And note that evidence of a vote is not required. That's one reason why it's so much easier to deal with ethics violations than criminal violations. And why the ethics process should be preserved, with full jurisdiction over legislators. It's in the public interest.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
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Comments
Jason Gramitt, ... (not verified) says:
Mon, 2009-05-18 15:55
Permalink
All in all the arguments went very well. The Due Process question came out of left field, but should not have any impact on the issues presented. We expect a decision in June.
The primary question the Justices were concerned with was whether or not the drafters of the Constitutional Ethics Amendment (and the voters who enacted it) clearly intended for Speech in Debate Immunity to be partially repealed.
We think that the plain language of the Rhode Island Ethics Amendment gives such clear jurisdiction to the Ethics Commission that it is obvious that legislative immunity was intended to be limited. Our opponent says that if the drafters/voters had intended to repeal legislative immunity, they should have said so by making a clear reference to that section of the Constitution. Implied repeals are, after all, disfavored at law.
I take two important things from this case, whether we win or lose, that other jurisdictions should consider:
1. Assuming your jurisdiction has a speech or debate clause, that clause will absolutely immunize a legislator against being questioned about his/her legislative actions unless the jurisdiction also has a constitutional amendment that specifically authorizes such actions against legislators; and
2. To be safe, a constitutional ethics amendment should reference a partial repeal of legislative immunity.