Decriminalizing Ethics Codes

I'd like to follow up on what I said at the end of yesterday's blog entry, about jurisdictions that make ethics violations criminal and require a showing of guilt beyond a reasonable doubt and a showing of intentionality or recklessness or negligence. Here is the penalty provision in the Arizona Conduct of Office chapter, which applies equally to local governments (to see the entire chapter, click here and scroll down to Chapter 3):

38-510. Penalties
A. A person who:

1. Intentionally or knowingly violates any provision of sections 38-503 through 38-505 is guilty of a class 6 felony.

2. Recklessly or negligently violates any provision of sections 38-503 through 38-505 is guilty of a class 1 misdemeanor.

B. A person found guilty of an offense described in subsection A of this section shall forfeit his public office or employment if any.

C. It is no defense to a prosecution for a violation of sections 38-503 through 38-505 that the public officer or employee to whom a benefit is offered, conferred or agreed to be conferred was not qualified or authorized to act in the desired way.

D. It is a defense to a prosecution for a violation of sections 38-503 through 38-505 that the interest charged to be substantial was a remote interest.

The City Ethics Model Code Project makes ethics violations civil offenses, with a lower burden of proof ("clear and convincing evidence") and no requirement to prove intentionality, recklessness, or negligence.

Criminalizing ethics ignores the fact that enforcement is not the principal reason ethics codes exist. Guidance and a good ethics environment are far more important.

Enforcement, when required, is itself intended to provide guidance to other officials, and assurance to citizens that ethical rules, and the trust they are intended to ensure, are taken seriously. Therefore, ethics enforcement should be relatively inexpensive and should not involve criminal authorities. When offenses go beyond ethics into taking money from public coffers and the like, then criminal law and authorities should come into play.

It is upsetting to see a lawyer refer to establishing an ethics violation as "very, very difficult." This makes officials feel they are immune, that nothing will happen to them. It is worse than having no enforcement mechanism at all, because officials can then say what they are doing is right, that they are innocent, even if the reason behind no charges being brought is that criminal authorities don't feel the crime is important enough to throw their resources at.

If there is no enforcement mechanism, at least the issue of an official's guilt or innocence is arguable.

I think it is also wrong to have forfeiture of office be a set result of an ethics violation, as is the case in Arizona. Most ethics violations are important enough to deal with, but not important enough to deserve forfeiture of office. This makes it even more unlikely that ordinary ethics violations will be recognized and dealt with, so that other officials can understand better what is acceptable and what is not.

I believe that Arizona and the many other jurisdictions like it should decriminalize ethics violations.

Robert Wechsler
Director of Research-Retired, City Ethics

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