Does a former ethics commission member have a special obligation not to make misstatements with respect to government ethics matters? This question arose from a 2010 case in Florida I just came across, where the state senate president hired a former chair of the state ethics commission as his attorney. According to an Associated Press article [1], the case involved the senator's numerous omissions in five years of disclosure statements, including earnings from a teaching position, real estate investments, and business clients. There were also misstated values of property owned. The senate president admitted to the omissions and misstatements.

Completely unnecessarily, the senate president's attorney said, "Basically what you have here is a harassing complaint." Considering that the senator admitted to his ethics violations, how could the complaint possibly be "harassing"? Talk like this is defamatory to ethics complainants and tends to make people think twice about filing complaints. Think how it looks to those with knowledge of ethical misconduct when a citizen makes truthful ethics allegations and then is personally attacked on behalf of a politician by a former ethics commission member?!

The former EC chair also said, "I would strongly advocate on his behalf that no further penalty is required. He has suffered quite enough." According to the article, he also said that embarrassment and humiliation are sufficient punishment for what he characterized as unintended clerical errors.

Let me leave aside whether embarrassment and humiliation constitute sufficient suffering, as well as the need for consistent penalties in order to be fair. The bigger problem here is the mention of "unintended clerical errors." Intent is not, or should not be, an issue in government ethics. There is no way for an EC to know whether an official's omissions are intended or not. An EC can only consider the extent and seriousness of omissions.

Look at the situation from the viewpoint of the public. A neutral observer will think that omitting employers and properties from a disclosure form is more than a "clerical error." Citizens will rightly think, "If the guy is so wealthy that he can't keep track of his jobs and properties (because I certainly can), he's wealthy enough to hire someone to fill out his form for him. Doesn't he have an accountant?"

There is nothing wrong with former EC members profiting from the expertise they gain from their public service. The question is, should they make it clear to their ethics clients that they will represent them as well as possible, but will not make misstatements about government ethics?

I believe that former EC members do have an obligation to let their clients know this. Government ethics is mostly about guidance, and those who have served on an EC should continue to guide correctly. If this means they lose some clients who want the most zealous representation possible, then so be it.

Robert Wechsler
Director of Research, City Ethics

203-230-2548