Both times Maricopa County Supervisor Don Stapley has had criminal charges brought against him, the counts included perjury charges for omissions on disclosure forms (2008 charges [1], 2009 charges [2]). Is this the best or even an appropriate way to handle such omissions?

It is true that, just above the signature line, many disclosure forms include the words "signed under penalty of perjury." But when there are specific penalties in the campaign finance or ethics laws for falsifying or omitting information, officials do not think that they will be indicted on criminal counts of perjury. Why have specific penalties if this could happen?

Here are the specific penalties set forth in Arizona Revised Statutes [3]:

38-544. Violation; classification
A. Any public officer, local public officer or candidate who knowingly fails to file a financial disclosure statement required pursuant to section 38-542, 38-543 or 38-545, who knowingly files an incomplete financial disclosure statement or who knowingly files a false financial disclosure statement is guilty of a class 1 misdemeanor.
B. Any public officer, local public officer or candidate who violates this chapter is subject to a civil penalty of fifty dollars for each day of noncompliance but not more than five hundred dollars that may be imposed as prescribed in section 16-924.

Note that a knowing violation of the state's conflict of interest provisions is a felony, not a misdemeanor. This shows that the state legislature considers a knowing violation of the disclosure provisions to be a lesser crime. And yet law enforcement officials have the right to raise the level of the violation above what the state legislature set, simply based on the added words "signed under penalty of perjury."

When I took my position, all the forms candidates had to fill out were sworn affidavits. But there was no reason for this, because there were already penalties for violating the law. So the board decided to turn them into regular forms, without penalty of perjury. This is something every ethics commission and campaign finance board should consider. Otherwise, you are adding a second layer of enforcement not contemplated by the legislature, and you are handing authority to prosecutors who might not share the ethics commission's goals or, as here, might have personal or political vendettas.

An alternative is to write into the law that law enforcement officials cannot seek penalties that do not expressly appear in the law, no matter what it says on the disclosure form. If one insists on criminalizing ethics laws (which I oppose), this is necessary, because prosecutors are trained to go for every possible charge they can think up. Ethics commissions tend to stick to the law and limit their charges. As an official, I know which I'd rather have going after me.

It is sad that elected officials seem to fear ethics commissions more than sheriffs and prosecutors, even more than their political rivals. The words "witch hunt" come up regularly when there is a question of creating an independent ethics commission. And yet the words rarely come up when enforcement is placed in the hands of political rivals, who might satisfy their personal and political animosity by dragging officials through arrest, indictment, and a criminal trial, with calls for resignation and the possible ruin of their careers, even for relatively minor ethics or campaign finance violations.

To me, this is a sign that elected officials have no more trust in the public than the public has in them. This is the side of public trust that too often is ignored. Lack of public trust in officials undermines democracy, lowering public participation. Lack of trust in the public suggests that officials don't really want a democracy, that they don't want public participation or true accountability.

Robert Wechsler
Director of Research, City Ethics

203-230-2548