Another serious problem posed by making a legislative immunity defense in the local
government ethics context can be seen from reading
the recommendation of the investigating panel of the Stamford (CT) board of ethics. In the section that provides reasons for dismissal of a complaint brought against a
council member, the panel wrote:
The case also presents significant legal issues arising from [the
respondent's] assertion of legislative immunity and First Amendment
protection for his actions. Whether or not [the respondent's]
positions are correct, these issues are likely to result in costly
and protracted legal proceedings. The City will be forced to
expend very significant financial resources to pursue this matter
not only at the Board of Ethics level, but likely in court as well.
In other words, the legislative immunity defense is the perfect way to get
an ethics commission to dismiss a complaint against you. You don't
even have to file a suit. Just the threat of a complex
constitutional litigation is enough to get an ethics commission to
think twice before moving ahead with a proceeding. Even a settlement
is not worth seeking, because the council member has all the
leverage.
As it turns out, Stamford had been burned already.
A
board of finance member sought a federal court injunction
against an ethics proceeding brought against him, partially on
legislative immunity grounds. He was unsuccessful, but it cost the city a lot of money. And it might cost the city more, because it is seeking a court determination of whether it must pay the
fees of ethics respondents, including fees relating to related suits they file. If the
court answers this question in the affirmative, what is to stop an
official who does not care about dealing responsibly with his
conflicts from threatening a suit based on legislative immunity,
knowing that the city will foot his bill?
And yet neither Stamford nor, as far as I can tell, any other local
government is trying to remove the obstacles legislative immunity
places in the way of the ethics process. If anyone is interested,
see
my
blog post on practical ways to deal with this problem .
Robert Wechsler
Director of Research, City Ethics
203-859-1959
