The Home-Field Advantage Theory of Government Ethics

One way of describing government ethics is that it involves the use and abuse of the power that goes with government officials' positions. Not all such abuses are covered by ethics laws, of course. This blog post looks at an instance of abuse that is not covered. It involves a state legislature and, especially, one state representative, in a state where local ethics is handled at the state level.

Much of the background story has appeared in various City Ethics blog posts. A couple of Louisiana legislators successfully limited the state ethics board's jurisdiction over them, on the basis of legislative immunity (by means of a court decision). But the board still held jurisdiction over legislators' non-legislative activities.

Then the legislature took the ethics board's enforcement authority away from it, handing it to over to panels of administrative judges. And according to an article in The Town Talk, the ethics board members quit. It took seven months to replace them.

At the same time, the legislature changed the standard of evidence in ethics cases from “reliable and substantial” to “clear and convincing,” over the protests of the ethics board. And according to the Town Talk article, a state legislator named Rick Gallot wrote an amendment to the ethics law lowering from two years to one year the time the ethics board has to issue charges after a complaint is filed or the board votes to consider the matter if there is no sworn complaint.

This all happened in 2008. Fast forward to 2009. According to an article in the Baton Rouge Advocate, in September, a panel of three administrative law judges threw out seven conflict of interest charges against Rep. Gallot because too much time had elapsed since the charges were filed. One of the three judges said that this interpretation of the law "leads to absurd consequences." And the ethics board has appealed the decision to a regular court, although it probably has no standing to do so.

Why should the ethics board complain if it was so slow in acting? Because it lacked a quorum for about seven months of the year that was left them after Rep. Gallot pushed through the new rule. And yet Rep. Gallot, chair of the House and Governmental Affairs Committee and the governor's floor leader on the ethics reforms, says, “I will do everything I have to do to defend myself.”

Against what? It seems like he did a good job changing the law to make it impossible for the ethics board to hear the case, raising the standards of evidence, and giving the board a limited time to bring its case before the new panel.

But this is not enough for Rep. Gallot. When the panel dismissed two cases brought by the ethics board, including the one against the sheriff who brought DWI charges against people, requiring them to buy a device that only his company sold, Gallot said, according to an Advocate article yesterday, “It certainly calls into question the validity of some of these charges. If they don’t have the evidence, why are they pursuing these charges? ... I’ve heard things like without home-court, home-field advantage the board doesn’t seem to be doing very well.”

If he has so much trust in the administrative law judges, why doesn't he let them decide his case? After all, he's the one who raised the standard of evidence, and he's the one who, in the case of the sheriff, limited conflicts to direct interests, so that clever officials could turn their direct interests into indirect interests in order to get around the law.

The real home-field advantage is the legislature's. While making a big deal about ethics reform, it has done all it could to undermine the ethics enforcement system. If Rep. Gallot cared anything about conflicts of interest, he would have kept his mouth shut about a board that has filed an appeal against him. But ethics is not the name of the game. The game, as Gallot has so well described it, is, Who has home-field advantage?

The ethics board's view of the dismissals is that they show the new system is not working well. But they're the visitor on the legislators' turf, and they're lucky to be given a locker room, a chance to play, and a handful of tickets for their friends.

Robert Wechsler
Director of Research-Retired, City Ethics

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