An EC's Immune System

Update: December 10, 2010 (see below)

After all I've written about the immunity courts have given legislators from enforcement actions by ethics commissions, I now can write about a court decision that gives ethics commissions and their staff immunity from suits by respondents in ethics enforcement actions, in this case one for defamation against an ethics board's executive director. The respondent in this case, however, is not a legislator, but a losing candidate for Philadelphia district attorney. See a recent blog post for more about the ethics proceeding.

The Philadelphia County Court of Common Pleas decision, McCaffery v. Creamer (January 28) (attached; see below), is important to protect EC members and staff from what the court calls the "distraction and expense associated with obviously retaliatory lawsuits."

The basis for the EC's absolute immunity from suit is its quasi-judicial activities. The court cites a Supreme Court decision, Butz v. Economou, 438 US 478, 516 (1978), which provided immunity with respect to activities akin to those of a prosecutor.

"Considerations to determine if functions are quasi-judicial in nature are the special nature of responsibilities, the need to prevent harassment and intimidation by losing parties, and the safeguards built into the judicial process."

"Under § 4-1100 of the Philadelphia Code, the [EC is] authorized, among other duties, to conduct investigations, to hold hearings regarding campaign finance irregularities, and to bring enforcement actions in the Court of Common Pleas, which would entail appellate review. Such activities are clearly quasi-judicial. Given the diverse nature of the Board's functions as both prosecutorial (conducting investigations) and quasi-judicial (holding hearings), the Board and its members are entitled to absolute quasi-judicial immunity."

"Additionally, there are procedures and safeguards in place to 'check' the actions of the Board of Ethics and its members, including judicial review."

In short, setting up an EC the usual way, and the way recommended in the City Ethics Model Code, protects an EC and its staff from suit. Having a board that conducts investigations and holds hearings, and providing court review of EC decisions, provides sufficient protection to respondents and entitles the EC "to function without the harassment or intimidation arising from retaliatory lawsuits. In addition, precious governmental resources should not be expended on defending frivolous lawsuits."

Interestingly, the court uses the principal government ethics goal as a principal reason for its decision:  "The distraction and expense associated with obviously retaliatory lawsuits undermines public confidence in the electoral process and compels the result in this case."

Update: December 10, 2010
Plaintiff appealed the decision, and the ethics board asked it to be handled by the Commonwealth Court, a special appellate court whose jurisdiction is limited to legal matters involving state and local government and regulatory agencies. Oral argument will not be held until February 2011 at the earliest.

Robert Wechsler
Director of Research-Retired, City Ethics

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