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The Witch Hunt Argument Against Ethics Commissions with Teeth
Tuesday, August 18th, 2009
Robert Wechsler
Update - see below (9/2/09)
One of the biggest limitations on local government ethics codes can be state ethics laws. In Connecticut, for example, state laws seriously limit how much local ethics commissions can fine violators of an ethics code. In fact, the language is so vague, many lawyers insist that local ethics commissions can't fine at all. State legislators, most of whom are former local government legislators, don't want to let local ethics commissions get out of hand.
Texas law prevents local ethics commissions not only from having teeth, but even from investigating violations. This makes it very easy for local politicians to create weak ethics commissions as mere window dressing.
According to an article in yesterday's El Paso Times, the state legislature passed a special statute to allow El Paso County's ethics commission to investigate and even fine ethics violators. Even though the county commission voted unanimously in favor of such a statute, not all of El Paso's state representatives supported the idea.
Therefore, limitations were placed on the commission. For example, it would not be allowed to file its own complaints or make its own investigations. Thus, tips from people afraid to file complaints themselves could not be investigated. In addition, the statute made such an ethics commission voluntary, requiring the county commission to approve its creation.
After fighting to give its ethics commission teeth in response to a big corruption scandal unearthed in 2005 ("at least 12 separate investigations involving as many as 80 'persons of interest,' including elected officials, judges and businessmen. A dozen people have pleaded guilty to corruption charges"), the commission members are not all so sure they want to go ahead with what they'd voted on originally.
One commission member now asks, "How do you legislate morality? What is ethics? What is right? What is true, and what is all this flowery bull crap?" He said that his fear was that the new commission would be used as a political weapon that could harm officials wrongly accused of unethical behavior. Such allegations, he said, usually make splashy headlines, but the news does not get much attention when accusations turn out to be false."
The old witch hunt argument. This argument always rears its ugly head when ethics commissions are discussed, but it is amusing to see it happen in a city that has just experienced an enormous corruption scandal. Local officials appear to have taken advantage of the lack of ethics enforcement. Wouldn't preventing such unethical conduct be more of a concern than a possible witch hunt by people who are, supposedly, neutral?
In addition, isn't the likelihood of false accusations in the press greater than false accusations where there is an official process to deal with them? Accusations are cheap, but frivolous complainers under the new statute can be fined just as much as officials who violate the ethics code. And ethics commission decisions can be appealed to a district court.
In other words, local officials are far more protected by safeguards under the new statute than they are now, or than the people of El Paso were protected from local officials.
Update: (9/2/09) According to an article in the El Paso Times, yesterday the county commissioners court unanimously established an ethics commission with teeth, pursuant to the state statute. There were even 20 protesters there with signs demanding an EC with teeth! A happy ending.
The selection process for the ethics commission is singular. A large EC (10 members) will be selected as follows: each of the five county commissioners selects one, and the other five are selected from a list of nominees presented by five local government and civic groups: the county's civil service commission, a bar association, the sheriff's civil service commission, a dispute resolution center, and a human resources management association in El Paso. An odd and rather large hybrid, but another example of an attempt to take elected officials at least partially out of the selection process, so that the EC is perceived as non-political. But I don't think this compromise will work, and the EC it requires will be unwieldy if it doesn't handle investigations and hearings by committees of the whole.
Robert Wechsler
Director of Research-Retired, City Ethics
---
One of the biggest limitations on local government ethics codes can be state ethics laws. In Connecticut, for example, state laws seriously limit how much local ethics commissions can fine violators of an ethics code. In fact, the language is so vague, many lawyers insist that local ethics commissions can't fine at all. State legislators, most of whom are former local government legislators, don't want to let local ethics commissions get out of hand.
Texas law prevents local ethics commissions not only from having teeth, but even from investigating violations. This makes it very easy for local politicians to create weak ethics commissions as mere window dressing.
According to an article in yesterday's El Paso Times, the state legislature passed a special statute to allow El Paso County's ethics commission to investigate and even fine ethics violators. Even though the county commission voted unanimously in favor of such a statute, not all of El Paso's state representatives supported the idea.
Therefore, limitations were placed on the commission. For example, it would not be allowed to file its own complaints or make its own investigations. Thus, tips from people afraid to file complaints themselves could not be investigated. In addition, the statute made such an ethics commission voluntary, requiring the county commission to approve its creation.
After fighting to give its ethics commission teeth in response to a big corruption scandal unearthed in 2005 ("at least 12 separate investigations involving as many as 80 'persons of interest,' including elected officials, judges and businessmen. A dozen people have pleaded guilty to corruption charges"), the commission members are not all so sure they want to go ahead with what they'd voted on originally.
One commission member now asks, "How do you legislate morality? What is ethics? What is right? What is true, and what is all this flowery bull crap?" He said that his fear was that the new commission would be used as a political weapon that could harm officials wrongly accused of unethical behavior. Such allegations, he said, usually make splashy headlines, but the news does not get much attention when accusations turn out to be false."
The old witch hunt argument. This argument always rears its ugly head when ethics commissions are discussed, but it is amusing to see it happen in a city that has just experienced an enormous corruption scandal. Local officials appear to have taken advantage of the lack of ethics enforcement. Wouldn't preventing such unethical conduct be more of a concern than a possible witch hunt by people who are, supposedly, neutral?
In addition, isn't the likelihood of false accusations in the press greater than false accusations where there is an official process to deal with them? Accusations are cheap, but frivolous complainers under the new statute can be fined just as much as officials who violate the ethics code. And ethics commission decisions can be appealed to a district court.
In other words, local officials are far more protected by safeguards under the new statute than they are now, or than the people of El Paso were protected from local officials.
Update: (9/2/09) According to an article in the El Paso Times, yesterday the county commissioners court unanimously established an ethics commission with teeth, pursuant to the state statute. There were even 20 protesters there with signs demanding an EC with teeth! A happy ending.
The selection process for the ethics commission is singular. A large EC (10 members) will be selected as follows: each of the five county commissioners selects one, and the other five are selected from a list of nominees presented by five local government and civic groups: the county's civil service commission, a bar association, the sheriff's civil service commission, a dispute resolution center, and a human resources management association in El Paso. An odd and rather large hybrid, but another example of an attempt to take elected officials at least partially out of the selection process, so that the EC is perceived as non-political. But I don't think this compromise will work, and the EC it requires will be unwieldy if it doesn't handle investigations and hearings by committees of the whole.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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