Some Questionable Missouri Ethics Reform Provisions

According to an article in the News-Tribune, the governor of Missouri recently signed an ethics bill (SB 844) that made many changes in the state's ethics and campaign finance programs, and failed to make others, such as a campaign contribution limit, which the legislature had eliminated in 2006. Missouri's ethics commission has jurisdiction over local government officials.

I'd like to focus on three interesting and questionable changes.

EC Investigations on Its Own Initiative
The first is very positive, with one major exception. §105.959.2 (pp. 22-23) allows the state EC to investigate a matter on its own, without anyone filing a complaint. This is an extremely important provision, because it allows an investigation of information provided anonymously or confidentially by people who are afraid of retaliation or simply unwilling to file a public action. It also allows an investigation based on news media reports, where no one has an interest in filing a complaint.

However, this excellent addition is seriously undermined by the requirement of unanimity. The Missouri EC is bipartisan, not nonpartisan. Its members are nominated by political party committees (a ridiculous idea, although the norm in many local governments) and selected by the governor. One individual can block an independent investigation into the conduct of a party colleague. (See the equivalent City Ethics Model Code provision, §213.3, which allows for a majority vote to look further into a matter.)

With one hand, this provision gives the EC an important power and, with the other hand, it undermines the public trust by allowing one partisan individual to block an investigation.

Penalties to Preserve Confidentiality
§105.959.7 (p. 24) makes EC investigations confidential, which is fine. But it also creates a new, excessive penalty to try to preserve this confidentiality:

Revealing any such confidential investigation information shall be cause for removal or dismissal of the executive director or a commission member or employee.

First of all, how can anyone do an investigation without informing those it interviews? Almost every investigatory question provides information about the investigation. One question, not to mention stating the purpose for the interview, and an employee could lose her job.

And what about revelations to the news media? There was a case involving the executive director of the Philadelphia EC, which I wrote about in a blog post last year. The director was asked by a reporter whether the EC had decided on a particular penalty for an official, and the director denied it. Then he was asked about an investigation of the matter. A "no comment" alone to the question would likely be taken as a confirmation of the investigation. So he said "no comment" on the record and confirmed the investigation off the record, telling the reporter that they were in the midst of settlement negotiations. His goal was to keep the investigation from being made public in the midst of negotiations. But to do this he had to violate the city's confidentiality provision.

Philadelphia's executive director was given a $500 fine for his snap judgment, which I think was excessive. In Missouri, the executive director could now be dismissed. This seems like a guaranteed way to limit investigations and keep strong staff members in line.

De Novo Review of EC Decisions
§105.961.6 (p. 28) allows for de novo judicial review of any ethics matter in which a violation is found. Appeal is one thing, but a de novo reconsideration by a court simply gives an official an opportunity to substantially delay the matter and hope for a better, or more timely resolution. It also substantially reduces the chance of a settlement and greatly increases government expenses.

The problem here, as in too many jurisdictions, is that Missouri's ethics laws are criminal laws. With criminal enforcement, due process requirements are much higher than with civil ethics enforcement. Ethics enforcement is supposed to be handled relatively quickly and inexpensively (assuming sufficient resources, which unfortunately is too often not the case).

Obstructing an Ethics Investigation
Finally, here's a relatively unusual new provision, §575.021 (pp. 68-69), creating the crime of obstructing an ethics investigation:

1. A person commits the crime of obstruction of an ethics investigation if such person, for the purpose of obstructing or preventing an ethics  investigation, knowingly commits any of the following acts:
(1) Confers or agrees to confer anything of pecuniary benefit to any person in direct exchange for that person's concealing or withholding any information concerning any violation of sections 105.450 to 105.496 and chapter 130;
(2) Accepting or agreeing to accept anything of pecuniary benefit in direct exchange for concealing or withholding any information concerning any violation of sections 105.450 to 105.496 or chapter 130;
(3) Utters or submits a false statement that the person does not believe to be true to any member or employee of the Missouri ethics commission or to any official investigating any violation of sections 105.450 to 105.496 or chapter 130; or
(4) Submits any writing or other documentation that is inaccurate and that the person does not believe to be true to any member or employee of the Missouri ethics commission or to any official investigating any violation of sections 105.450 to 105.496 or chapter 130.

2. It is a defense to a prosecution under subdivisions (3) and (4) of subsection 1 of this section that the person retracted the false statement, writing, or other documentation, but this defense shall not apply if the retraction was made after:
(1) The falsity of the statement, writing, or other documentation was exposed; or
(2) Any member or employee of the Missouri ethics commission or any official investigating any violation of sections 105.450 to 105.496 or chapter 130 took substantial action in reliance on the statement, writing, or other documentation.

3. The defendant shall have the burden of injecting the issue of retraction under this section.

4. Obstruction of an ethics investigation under this section is a class A misdemeanor.

Robert Wechsler
Director of Research-Retired, City Ethics

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