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Legislators' Independence of Ethics Enforcement
Monday, July 5th, 2010
Robert Wechsler
On Independence Day weekend, it's worth remembering that independence
does not come cheap, and that there are some things that are more
important than independence.
One of those things is the public trust. There is a serious cost to our society when government officials place their independence from ethics enforcement above the public trust, that is, when government officials insist on legislative immunity. And there is a cost to officials, too: their trial not by a neutral body in a formal proceeding that the public can have trust in, but rather by partisan accusations and media coverage based on the manipulation of limited facts and a limited understanding of the issues involved.
No government official is as independent as the recent judicial opinions on legislative immunity would have us believe. Nor is independence an absolute value, whether because it is written in a constitution or statute, or because it is ensured by ancient common law from the days of kings and queens.
The occasion for these words is not only Independence Day, but two judicial decisions last week that have struck a big blow to the enforcement of government corruption. The first was the the Supreme Court's Skilling v. U.S. decision last week (see my blog post on the decision), which struck a big blow against federal enforcement of government corruption laws.
The second, and the topic of this blog post, was Thursday's unanimous opinion of a three-judge tribunal of the Maryland Court of Special Appeals, Maryland v. Holton, which struck a big blow against state enforcement of government corruption laws, at least in Maryland (the case involved a member of the Baltimore city council). And there is dictum that would likely be applied to state and local ethics commission enforcement of local ethics codes.
Federal and State Jurisdiction Over Local Officials' Bribery and Unethical Conduct
The Skilling decision essentially said that the feds can't go after conflict of interest misconduct short of bribery — in our context, the federal government has no jurisdiction over local government ethics unless there's bribery. The Holton decision essentially said that the state can't go after local legislators' bribery unless it can be proved without any evidence regarding legislative conduct (due to legislative immunity) — in our context, state governments cannot do anything about bribery by a local legislator where the legislator's quid pro quo involves his or her legislative conduct. It would appear that the same would be true of conflicts of interest short of bribery, where the legislator's participation is necessary to prove that an ethics violation has occurred.
Who Will Investigate Local Misconduct?
This leaves the feds in charge of handling local bribery, but out of the rest of local government ethics. So, when the feds decide whether to investigate reports of a local legislator's unethical conduct, they have to be pretty sure that there's bribery involved (and that they can prove it), or they won't bother.
When a Maryland prosecutor decides whether to investigate reports of a local legislator's unethical conduct, she must be sure that no evidence of participation or a vote needs to shown, and most conflicts of interest involve legislative participation.
By the way, the term "local legislator" generally includes not only council members and their staffs, but also planning board members and others who act in a legislative manner. It can even include city and county managers, and their staffs, when dealing with legislation, directly or indirectly.
The Appellate Opinion
The Holton opinion affirms nearly all the conclusions of the trial court, which I criticized in an earlier blog post. It affirms that common-law legislative immunity is "co-extensive" with constitutional legislative immunity (fortunately, the appellate court dropped the trial court's crazy language regarding a "unified theory" of legislative immunity). The appellate court, like the trial court, ignores the differences between official and legislative immunity, and ignores the fact that it is far easier to waive common-law immunity than it is to waive constitutional immunity. My arguments concerning these issues appears in the earlier blog post.
The prosecutor is at fault for not raising the waiver issue, but the appellate court did raise issues not raised before, including one where it disagreed with both parties to the appeal!
Harmonizing Constitutional Provisions
There is one part of the appellate opinion that sounds very much like the Rhode Island legislative immunity opinion (see my blog post on it), only in a different context. Both opinions seek to harmonize parts of each state's constitution, but they do so in a way that is hardly self-evident.
On pp. 12-14, the Maryland appellate court cites a 1972 opinion which "harmonizes" a constitutional provision (Art. III, Sect. 50) that requires the state legislature to pass a law making it a crime for state and local officials to accept a bribe given "in order to influence him in the performance of any of his official duties" with legislative immunity, which requires that no evidence of a legislative official's official duties can be presented before any court. The court held in 1972 that the bribery provision was “a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefore can be accompanied without impinging on the legislative privilege by introducing evidence of legislative acts.”
This is harmonization in theory only. In practice it is very difficult to prove that someone accepted a bribe to influence the performance of official duties without any evidence of such performance of duties. Why would the drafters of a constitution choose to tie prosecutors' hands behind their back? Why would they have bothered to include such a provision at all, if it intended what the appellate court believes they intended? These practical questions seem beyond the consideration of the highly theoretical Maryland court of appeals.
Harmonizing a Statute and a Constitutional Provision
What's so fascinating about the appellate opinion in the Holton case is that it has the audacity to go a step beyond this questionable constitutional harmonization. On pp. 42ff, it considers a statute that gives local legislators immunity, at least under some circumstances (the constitution gives it only to state legislators). Although the title of the provision is "Action for defamation against local government official," the court says this title is not controlling, despite the fact that both parties argued that the title is controlling and that the statute is not applicable to the Holton case (the court raised the issue, not the parties).
The court concludes, "our reading of [the statute], in our view, creates no conflict with Article III, Section 50 of the Maryland Constitution because, if construed consistently with the State legislative privilege, it would only provide immunity from prosecution based on their legislative conduct, which also renders inadmissible evidence of such conduct to prove the criminal offense." It says that this conclusion is consistent with the constitutional harmonization argument.
But isn't there a difference between a constitutional provision and a statute? If the constitution says that bribery laws must apply to local officials and there is no constitutional provision that says otherwise, how could the legislature then except local officials from these laws to the extent evidence is required of one of the two elements of the crime? This makes no sense, and places into question the rest of the court's opinion, just as the trial court's talk of a "unified theory" placed into question its opinion (and the appellate court itself ignored or threw out several of the trial court's approaches and conclusions, even as it affirmed the trial court's opinion).
Separation of Powers and Interference with Legislative Power
One good thing about the appellate opinion is that, in one of the questions the court itself raised, it rejects the separation of powers argument for legislative immunity where the state enforces state criminal laws relating to local officials (an argument other courts have taken from the California D'Amato opinion). However, the appellate court does raise an argument that would, if accepted elsewhere, undermine state enforcement of ethics laws relating to local officials, where evidence of legislative activity is required.
The argument is that “[w]hen the Legislature confers legislative power on a municipal body, a judicial or executive body may not interfere with that legislative power, except as the Legislature authorizes.” And since the legislature has not expressly stated that common-law legislative immunity does not apply, then it applies in this situation, and a state prosecutor must respect it.
A practical way to deal with this questionable, convuluted argument is to have any state ethics law applicable to local officials expressly state that legislative immunity does not apply. The other way, of course, is for local officials that participate in any legislative activity expressly waive their legislative immunity in a government ethics context, whether state, local, or regional.
There is dictum in the appellate opinion (p. 40) that the separation of powers doctrine does apply in the local context, where there are "co-equal" legislative and executive branches, but the opinion says nothing about the common council-manager form of government, where the executive is selected by the legislative body. Nor does it say anything about an ethics commission formed by the local legislative body and either made part of the legislative branch or made independent of both branches, with members not selected by officials from either branch.
Idealism vs. Reality
The court's final words show its members' strong idealistic prejudice toward legislators and the voting booth, and a complete lack of interest in or understanding of corruption laws relating to them:
Another way of putting this is, is it truly the will of local legislators, and the preference of the appellate court, that local legislators be tried solely via partisan accusations and media coverage, rather than through the responsible process of a criminal or ethics proceeding? I ask this question because, according to the appellate opinion, the accusations and denials that fill our media coverage would be the only way citizens could possibly obtain information about what their local legislators might have done in violation of bribery and conflict of interest laws, so that these legislators would be answerable for their conduct.
The Need for Legislative Integrity and Independence
Besides sticking their heads in the sand of constitutional and democratic doctrine, the Maryland judges, trial and appellate, show no recognition that the "need for legislative integrity and independence" (p. 51 of appellate opinion, and see p. 15 of the trial court opinion), which they see as central to legislative immunity, is also central to government ethics laws. The goals of government ethics and legislative immunity are essentially the same, and yet the judges play one off against the other. Even when the state constitution focuses on bribery, the judges are incapable of recognizing that the goals of these constitutional provisions are already harmonized, and that it is this harmonization of goals, not a judicial approach that harmonizes on the basis of theory, which should be embraced.
Gift and Campaign Finance Rules, and Advisory Opinions
As harmful as these decisions are to enforcement of important corruption and ethics laws, they do underline the importance of some ethics laws, such as gift and campaign finance rules, where there is no need to prove a quid pro quo or conflict. Since these rules are not subject to legislative immunity defenses, local and state ethics codes must be drafted and improved in order to make these rules effective.
These decisions, and other recent legislative immunity decisions, also lead us to focus our attention on an aspect of government ethics programs that is more important than enforcement — the advisory opinion. If local officials effectively insist on immunity from government ethics enforcement, then the advisory opinion becomes central to making them accountable. If they act and do not seek an advisory opinion in advance of their acting, then this fact alone, even though it is an omission, becomes the predominant way by which the public can judge their officials. Everything else — all those accusations and denials — is open to question.
Fortunately, there is no constitutional immunity from seeking such advice.Strict legislative immunity should mean a strict requirement to seek neutral advice from an independent ethics officer or ethics commission, not from a government appointee such as a city attorney, before acting where there is the slightest possibility of an appearance of impropriety. If an official acts without seeking advice, or against the advice received, and refuses to waive his or her legislative immunity, then there should be a presumption of ethical misconduct, and any denial outside of an ethics proceeding should be ignored.
As I said at the beginning of this long blog post, there is a cost to placing independence above ethics, of treating independence as an absolute value. Those who insist on their independence, both of ethics enforcement and ethics advice, must be willing to accept the public's anger and disbelief of any defense they raise outside of the formal advice and enforcement process that is fully available to them, but which they reject.
Robert Wechsler
Director of Research-Retired, City Ethics
---
One of those things is the public trust. There is a serious cost to our society when government officials place their independence from ethics enforcement above the public trust, that is, when government officials insist on legislative immunity. And there is a cost to officials, too: their trial not by a neutral body in a formal proceeding that the public can have trust in, but rather by partisan accusations and media coverage based on the manipulation of limited facts and a limited understanding of the issues involved.
No government official is as independent as the recent judicial opinions on legislative immunity would have us believe. Nor is independence an absolute value, whether because it is written in a constitution or statute, or because it is ensured by ancient common law from the days of kings and queens.
The occasion for these words is not only Independence Day, but two judicial decisions last week that have struck a big blow to the enforcement of government corruption. The first was the the Supreme Court's Skilling v. U.S. decision last week (see my blog post on the decision), which struck a big blow against federal enforcement of government corruption laws.
The second, and the topic of this blog post, was Thursday's unanimous opinion of a three-judge tribunal of the Maryland Court of Special Appeals, Maryland v. Holton, which struck a big blow against state enforcement of government corruption laws, at least in Maryland (the case involved a member of the Baltimore city council). And there is dictum that would likely be applied to state and local ethics commission enforcement of local ethics codes.
Federal and State Jurisdiction Over Local Officials' Bribery and Unethical Conduct
The Skilling decision essentially said that the feds can't go after conflict of interest misconduct short of bribery — in our context, the federal government has no jurisdiction over local government ethics unless there's bribery. The Holton decision essentially said that the state can't go after local legislators' bribery unless it can be proved without any evidence regarding legislative conduct (due to legislative immunity) — in our context, state governments cannot do anything about bribery by a local legislator where the legislator's quid pro quo involves his or her legislative conduct. It would appear that the same would be true of conflicts of interest short of bribery, where the legislator's participation is necessary to prove that an ethics violation has occurred.
Who Will Investigate Local Misconduct?
This leaves the feds in charge of handling local bribery, but out of the rest of local government ethics. So, when the feds decide whether to investigate reports of a local legislator's unethical conduct, they have to be pretty sure that there's bribery involved (and that they can prove it), or they won't bother.
When a Maryland prosecutor decides whether to investigate reports of a local legislator's unethical conduct, she must be sure that no evidence of participation or a vote needs to shown, and most conflicts of interest involve legislative participation.
By the way, the term "local legislator" generally includes not only council members and their staffs, but also planning board members and others who act in a legislative manner. It can even include city and county managers, and their staffs, when dealing with legislation, directly or indirectly.
The Appellate Opinion
The Holton opinion affirms nearly all the conclusions of the trial court, which I criticized in an earlier blog post. It affirms that common-law legislative immunity is "co-extensive" with constitutional legislative immunity (fortunately, the appellate court dropped the trial court's crazy language regarding a "unified theory" of legislative immunity). The appellate court, like the trial court, ignores the differences between official and legislative immunity, and ignores the fact that it is far easier to waive common-law immunity than it is to waive constitutional immunity. My arguments concerning these issues appears in the earlier blog post.
The prosecutor is at fault for not raising the waiver issue, but the appellate court did raise issues not raised before, including one where it disagreed with both parties to the appeal!
Harmonizing Constitutional Provisions
There is one part of the appellate opinion that sounds very much like the Rhode Island legislative immunity opinion (see my blog post on it), only in a different context. Both opinions seek to harmonize parts of each state's constitution, but they do so in a way that is hardly self-evident.
On pp. 12-14, the Maryland appellate court cites a 1972 opinion which "harmonizes" a constitutional provision (Art. III, Sect. 50) that requires the state legislature to pass a law making it a crime for state and local officials to accept a bribe given "in order to influence him in the performance of any of his official duties" with legislative immunity, which requires that no evidence of a legislative official's official duties can be presented before any court. The court held in 1972 that the bribery provision was “a limited mandate providing for punishment of State legislators guilty of bribery if indictment and prosecution therefore can be accompanied without impinging on the legislative privilege by introducing evidence of legislative acts.”
This is harmonization in theory only. In practice it is very difficult to prove that someone accepted a bribe to influence the performance of official duties without any evidence of such performance of duties. Why would the drafters of a constitution choose to tie prosecutors' hands behind their back? Why would they have bothered to include such a provision at all, if it intended what the appellate court believes they intended? These practical questions seem beyond the consideration of the highly theoretical Maryland court of appeals.
Harmonizing a Statute and a Constitutional Provision
What's so fascinating about the appellate opinion in the Holton case is that it has the audacity to go a step beyond this questionable constitutional harmonization. On pp. 42ff, it considers a statute that gives local legislators immunity, at least under some circumstances (the constitution gives it only to state legislators). Although the title of the provision is "Action for defamation against local government official," the court says this title is not controlling, despite the fact that both parties argued that the title is controlling and that the statute is not applicable to the Holton case (the court raised the issue, not the parties).
The court concludes, "our reading of [the statute], in our view, creates no conflict with Article III, Section 50 of the Maryland Constitution because, if construed consistently with the State legislative privilege, it would only provide immunity from prosecution based on their legislative conduct, which also renders inadmissible evidence of such conduct to prove the criminal offense." It says that this conclusion is consistent with the constitutional harmonization argument.
But isn't there a difference between a constitutional provision and a statute? If the constitution says that bribery laws must apply to local officials and there is no constitutional provision that says otherwise, how could the legislature then except local officials from these laws to the extent evidence is required of one of the two elements of the crime? This makes no sense, and places into question the rest of the court's opinion, just as the trial court's talk of a "unified theory" placed into question its opinion (and the appellate court itself ignored or threw out several of the trial court's approaches and conclusions, even as it affirmed the trial court's opinion).
Separation of Powers and Interference with Legislative Power
One good thing about the appellate opinion is that, in one of the questions the court itself raised, it rejects the separation of powers argument for legislative immunity where the state enforces state criminal laws relating to local officials (an argument other courts have taken from the California D'Amato opinion). However, the appellate court does raise an argument that would, if accepted elsewhere, undermine state enforcement of ethics laws relating to local officials, where evidence of legislative activity is required.
The argument is that “[w]hen the Legislature confers legislative power on a municipal body, a judicial or executive body may not interfere with that legislative power, except as the Legislature authorizes.” And since the legislature has not expressly stated that common-law legislative immunity does not apply, then it applies in this situation, and a state prosecutor must respect it.
A practical way to deal with this questionable, convuluted argument is to have any state ethics law applicable to local officials expressly state that legislative immunity does not apply. The other way, of course, is for local officials that participate in any legislative activity expressly waive their legislative immunity in a government ethics context, whether state, local, or regional.
There is dictum in the appellate opinion (p. 40) that the separation of powers doctrine does apply in the local context, where there are "co-equal" legislative and executive branches, but the opinion says nothing about the common council-manager form of government, where the executive is selected by the legislative body. Nor does it say anything about an ethics commission formed by the local legislative body and either made part of the legislative branch or made independent of both branches, with members not selected by officials from either branch.
Idealism vs. Reality
The court's final words show its members' strong idealistic prejudice toward legislators and the voting booth, and a complete lack of interest in or understanding of corruption laws relating to them:
-
Local legislators constitute the most direct form of representative
democracy. They are the closest to the People and they often set the
policies that most directly affect the health, safety and quality of
life of the people residing in their communities. They must enjoy the
same ability to speak and act in their legislative capacities, without
fear of retribution, either criminally or civilly, because of what they
say or how they vote. They may be called upon to answer for their
legislative conduct to the citizens who elected them, which is what
democracy is all about, but they may not be compelled to defend their
legislative conduct to a prosecutor, to a grand jury or to a court.
Another way of putting this is, is it truly the will of local legislators, and the preference of the appellate court, that local legislators be tried solely via partisan accusations and media coverage, rather than through the responsible process of a criminal or ethics proceeding? I ask this question because, according to the appellate opinion, the accusations and denials that fill our media coverage would be the only way citizens could possibly obtain information about what their local legislators might have done in violation of bribery and conflict of interest laws, so that these legislators would be answerable for their conduct.
The Need for Legislative Integrity and Independence
Besides sticking their heads in the sand of constitutional and democratic doctrine, the Maryland judges, trial and appellate, show no recognition that the "need for legislative integrity and independence" (p. 51 of appellate opinion, and see p. 15 of the trial court opinion), which they see as central to legislative immunity, is also central to government ethics laws. The goals of government ethics and legislative immunity are essentially the same, and yet the judges play one off against the other. Even when the state constitution focuses on bribery, the judges are incapable of recognizing that the goals of these constitutional provisions are already harmonized, and that it is this harmonization of goals, not a judicial approach that harmonizes on the basis of theory, which should be embraced.
Gift and Campaign Finance Rules, and Advisory Opinions
As harmful as these decisions are to enforcement of important corruption and ethics laws, they do underline the importance of some ethics laws, such as gift and campaign finance rules, where there is no need to prove a quid pro quo or conflict. Since these rules are not subject to legislative immunity defenses, local and state ethics codes must be drafted and improved in order to make these rules effective.
These decisions, and other recent legislative immunity decisions, also lead us to focus our attention on an aspect of government ethics programs that is more important than enforcement — the advisory opinion. If local officials effectively insist on immunity from government ethics enforcement, then the advisory opinion becomes central to making them accountable. If they act and do not seek an advisory opinion in advance of their acting, then this fact alone, even though it is an omission, becomes the predominant way by which the public can judge their officials. Everything else — all those accusations and denials — is open to question.
Fortunately, there is no constitutional immunity from seeking such advice.Strict legislative immunity should mean a strict requirement to seek neutral advice from an independent ethics officer or ethics commission, not from a government appointee such as a city attorney, before acting where there is the slightest possibility of an appearance of impropriety. If an official acts without seeking advice, or against the advice received, and refuses to waive his or her legislative immunity, then there should be a presumption of ethical misconduct, and any denial outside of an ethics proceeding should be ignored.
As I said at the beginning of this long blog post, there is a cost to placing independence above ethics, of treating independence as an absolute value. Those who insist on their independence, both of ethics enforcement and ethics advice, must be willing to accept the public's anger and disbelief of any defense they raise outside of the formal advice and enforcement process that is fully available to them, but which they reject.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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