When An EC Member's Appointing Authority Comes Before the Commission

According to Courthouse News Service articles Tuesday and yesterday, former Georgia ethics commission executive secretary Stacey Kalberman and her deputy, Sherry Ellen Streicker, filed suits against the commission and its chair, Patrick Millsaps, for retaliating against their attempt to investigate then Governor Deal's alleged campaign finance violations by removing Streicker's position from the budget, seriously cutting Kalberman's salary, leaking an e-mail to the chair about this issue, and falsely stating that Kalberman had resigned from her position.

I have attached a memorandum from the state inspector general's office, based on an interview with Kalberman (see below). That and the articles clearly set forth her view of what is alleged to have occurred. There is no reason to go further into the details here.

There are two aspects of the case that really matter, from a government ethics point of view. One, Governor Deal re-appointed Millsaps, Governor Deal was being investigated, and Millsaps appears to have been involved in the matter. Two, Millsaps' actions regarding budget cuts do not appear to have followed formal budget processes.

As the IG's memo says, "When asked for her response to the allegation that Governor Deal abused his position and 'had his appointee, Millsaps, get rid of Executive Secretary Stacey Kalberman' ... , Kalberman stated, 'I believe it is absolutely true but of course I don't have documents from the Governor telling Patrick Millsaps to get rid of me.'"

The question is, Is any document necessary? Here's the situation. A lawyer with ongoing involvement in local and state legal and political matters is appointed to the state ethics commission by one governor, and reappointed by another governor. The appointment system was not his doing, but he accepted the system and the position. As soon as a matter involving his appointing authority arose, he could have chosen to withdraw from the matter due to the apparent conflict involved. According to an article in the Atlanta Journal-Constitution, he "said he would likely recuse himself from the Deal case anyway." He was aware of the value of withdrawing. But he chose not to.

When the executive secretary sought approval of subpoenas related to the matter involving the governor, which are apparently approved by the chair, the chair did not say that he had withdrawn from the matter and to have them approved by the vice-chair. He instead told her he was cutting the position of her deputy, which was the sole investigatory position, thereby ending all investigations, and that he was substantially cutting her own salary.

Considering the situation, it is reasonable to assume the worst. After all, the governor could have asked Millsaps to withdraw from the matter as soon as he received the complaint. He could also have turned over his authority to select ethics commission members to one or more civic organizations (as is done in Atlanta). He or Millsaps could have asked the executive secretary how they should handle the investigation of the governor. But they apparently did not.

So when Millsaps acted in a way that could be seen as impeding the investigation of his appointing authority, and acted outside the ordinary course of handling budget issues (which had been discussed for months), it doesn't matter whether the budget cuts were made to impede the investigation, or whether the governor was directly or indirectly involved in Millsaps' conduct. Millsaps should not have been involved at all, because his conduct could reasonably be perceived as benefiting his appointing authority.

Had Millsaps turned the subpoena approval process over to somebody else, raised the budgetary issues formally at a commission meeting, and allowed other members as well as staff to prepare for a discussion of the matter before it was decided, there would be less of an issue. It is the combination of a conflict situation and the failure to follow formal processes that makes Millsaps' conduct appear so improper.

The IG's office, of course, did not find any evidence that the governor had been directly involved, and stopped there. But that does not mean what happened was right, only that what appeared to be true (directly or indirectly) could not be proven.

What's interesting here is that, according to a post on the Atlanta Unfiltered blog, the IG himself "said in an interview that he 'isolated' himself from the investigation [of the governor] from the start, since he is Deal’s appointee, and assigned the case to his senior investigator." Of course, the IG office could not legally expect the ethics chair to do what the IG had done, but ethically the public could certainly have expected this of someone in the ethics chair's position. If he could not deal responsibly with a conflict, as the IG did, how could he ask other officials to do so?

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959