An Ethics Reform Petition Moves Forward in Utah

It's official. According to an article in yesterday's Salt Lake City Tribune, a comprehensive ethics reform petition has been okayed for distribution, with the goal of placing it on the November 2010 ballot. That requires 95,000 signatures on a 21-page petition that is far from easy reading.

How bad are the ethics laws in Utah? In the words of the petition sponsor, Utahns for Ethical Government, "the legislature has been unwilling to enact enforceable ethical standards of conduct or a workable process for enforcing its own rules. ... A troubling, parallel development is that lobbyists and special interests are free to inject unlimited amounts of corporate money into Utah’s political system, often by invitation from legislators who, again and again, go back to the same contributors for more and more donations to personal projects, committees, caucuses, and leadership campaigns. ... Utah’s financial disclosure laws have been ranked 47th worst in the nation. Forty-four states limit financial contributions to legislators; Utah does not. Eighty-one percent of all money funding legislative campaigns in Utah comes from special interests."

The petition seeks an independent ethics commission for the state legislature only. The commission would have no jurisdiction over the executive branch or over local governments. An executive branch petition would be the next step, the sponsor says.

The petition is full of unusual rules and language, some good, some not so good. On the good side, it sets an annual EC appropriation at a specific dollar amount, or more. It smartly prohibits legislative counsel from representing legislators before the EC, while reimbursing for attorney fees. It has a long statute of limitations, which doesn't begin to run until misconduct could have been discovered through publicly available information; that is, if the conduct secret, there's effectively no statute of limitations. It takes lobbyists totally out of the campaign contribution picture, and that includes corporations that hire lobbyists or lobby themselves. It prevents legislators from influencing civil and criminal proceedings, and citizen initiatives.

The rules for who can be an EC member are excellent, even if the petition allows legislative leaders to select them.

The most interesting definition is that of "insider":

“Insider” of a legislator includes (i) any relative of the legislator, (ii) any person in relation to whom the legislator is a control person, (iii) any person who is a controlling person in relation to a legislator, and (iv) any client of a legislator.

The jargon is oppressive, but the idea is a good way to bring together many people and entities in relationship to an official.

Some unfortunate provisions include almost total confidentiality of EC proceedings, legislative approval of EC enforcement recommendations, the lack of clear penalties (but felony is mentioned, which requires criminal enforcement), and the involvement of the EC in determining whether any legislator's law-breaking bears on his or her "fitness to serve," allowing complaints to be filed every time a legislator gets a DUI citation or misses an alimony payment.

An especially unusual and unfortunate aspect of the petition is the major role given to complainants, who must actually make a case before the EC. This means that ordinary citizens cannot bring complaints, unless they're wealthy or supported by an organization (unlike legislators, their fees are not reimbursed). In addition, three complainants are required.

And since the EC cannot act on its own intitative, there can be no hotline or other way of getting information confidentially. Therefore, people in the know, such as legislative aides, are not in a position to alert the EC to situations they might investigate. The result may be that most complaints will be political in origin (three or more party members), or will originate with public interest groups who will put forward three individuals as complainants.

In short, like most ethics codes, this one has its good points and its bad points. It's so much better to have a legislative body work these points out, and an EC make recommendations based on its experiences with the ethics provisions. But Utah seems to have an ethically disabled legislative process, so this is the way ethics reform has to proceed. Legislators should be ashamed that it's come to this, but instead it's likely that they will do what they can to keep control of the ethics process by passing a much weaker ethics law next year and asking people to vote against the initiative.

According to an article in the Deseret News, a September 2009 poll shows that the legislature is completely out of step with the public. 85% said they favor the ethics initiative. Some more specific poll results:

 81% support banning all gifts to legislators from lobbyists, except for a "light refreshments."
 74% favor limiting campaign contributions to legislators to $2,500 per individual and $5,000 per PAC.
56% support banning campaign donations from businesses, labor unions, and nonprofits.

Robert Wechsler
Director of Research-Retired, City Ethics

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