The EC Selection Process and Recusal

When an ethics commission and its staff are at odds, and the commission is dealing with complaints against high-level officials, it is always best for everyone when those officials had nothing to do with the selection of the ethics commission's members or its staff. In other words, you never fully appreciate an EC's independence, in terms of its selection process, until things get ugly. Things got ugly in Georgia this week.

According to an article in yesterday's Atlanta Journal-Constitution, the Georgia Government Transparency and Campaign Finance Commission (EC; formerly known as the Ethics Commission) began an investigation of the campaign of the state's new governor in September 2010 (see my blog post on the same individual's resignation from Congress to get out of the House Ethics Committee's jurisdiction). This February, the governor reappointed the EC chair.

It is the EC chair who approves subpoenas, which are used in investigations. Twice in May, the EC chair did not respond to requests for subpoenas made by the EC's executive secretary (effectively the executive director). Then, on June 9, the executive secretary was told by the EC chair that the position of her deputy (and principal investigator) was being cut and that her own salary was being cut 30%.

The executive secretary, who resigned, appears to believe that she and her deputy were forced out for the same reason the subpoenas were not provided:  to protect the governor from the investigation. Whether she is right or not is irrelevant. The fact is that it appears to the neutral observer that this was the case. And the fact that the EC chair was appointed by the former governor and reappointed by the new governor (both from the same party) certainly doesn't make the situation look any better.

The EC has five members, three appointed by the governor, one appointed by a senate committee, and one appointed by the speaker of the house. This means that whenever a governor, senator, or representative, or a member of their staffs, comes before the EC, one or more EC members has an apparent conflict.

The EC chair partially recognizes this. According to a Thursday article in the Journal-Constitution, the EC chair says that he will recuse himself from the matter involving the governor. But this raises two questions. One, if it had been the former governor, three members of the EC would have to recuse themselves and, therefore, either it could not function or all the members would be forced to participate despite the apparent conflict.

Two, if the EC chair recognizes his conflict, why did he refuse to provide subpoenas? He should have delegated his responsibility to the vice chair, if the vice chair had no conflict. By refusing to respond to the subpoena request, he did not recuse himself from the matter involving the governor.

It is also arguable that, considering how the personnel decision looks to the public, that the EC chair should have recused himself from that, as well.

It's too late to handle this matter responsibly. What can be done, however, is to change the selection process, to follow the example of Atlanta and have EC members selected by community organizations (see my blog post on this). This will ensure that EC members will be far less likely to have apparent conflicts that undermine the public's trust in the ethics process.

Robert Wechsler
Director of Research-Retired, City Ethics

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