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EC Members Should Respond Constructively, Not Destructively to Criticism of the EC
Monday, March 21st, 2011
Robert Wechsler
This blog post was partially rewritten on March 24, 2011 after communication with the EC's executive director.
The actions of one member of Kentucky's state legislative ethics commission has undermined the public's view of the EC and of the state's lawyer disciplinary system. This case shows why it is inappropriate for ethics commission members to respond in destructive rather than constructive ways when the EC is criticized for not taking action against officials, something that happens all the time in a healthy democracy.
According to an article in today's Lexington Herald-Leader, back in 2007 the legislative EC dismissed a complaint against the senate president involving campaign contributions allegedly solicited from lobbyists.
A lawyer and former state senator was angered by this dismissal, wrote a letter to the EC, and gave it to reporters. In this letter, the lawyer said he disagreed with the decision and that he felt what occurred was clearly illegal. The most controversial part of his letter, according to the article, read as follows:
According to the article, the letter got little publicity. But a member of the legislative EC, a former state court of appeals chief judge no less, was enraged, and two days later he filed a complaint with the state bar association, which oversees the lawyer disciplinary system. Here is the principal rule of professional conduct under which the complaint was made (8.2(a)):
The EC's executive director told me that the lawyer said that the EC’s decision “was contrary to the undisputed evidence that was presented," and that this was a false statement and reckless, because the lawyer did not know what evidence was presented. But still, this is less a false statement than an angry attack on a group of people who were appointed by top legislators, including the legislator against whom the complaint had been brought. When citizens vent their anger at such situations, they do tend to go overboard. This reflects not on the individuals, but on the procedure by which they are selected. It does not justify an EC member bringing a proceeding against the citizen.
Criticism Should Lead to Discussion of the EC's Procedures, Not to Complaints
The bottom line here is that no EC member should file any sort of complaint against anyone who criticizes the EC's processes and decisions. Beyond the First Amendment issues involved, doing so is a misuse of office.
ECs should welcome criticism, as the commentary to the rule of professional conduct says about courts. And EC members should expect to be criticized, especially when their EC is not seen as independent, due to the selection process (by house and senate leaders, who lead the people who come before the commission), and also not seen as open or fair. EC members can use such criticism as an occasion for their own criticism or defense of the EC's process. This is a healthy exercise. Filing complaints can only hurt the EC's reputation and, therefore, the trust people place in the state's ethics program.
The former judge did something he should not have done. He did it to protect his personal reputation, and the reputation of the EC, apparently giving little thought to the fact that the action against the citizen would have a greater effect on the EC's reputation than the lawyer's words did (see below for some consequences of the EC member's conduct). I believe that someone who puts himself above the public interest in allowing citizens to freely criticize government decisions should publicly apologize for his action, explain to the public why what he did was wrong, and ask the bar association to withdraw the warning letter. The EC should also explain why it said or did nothing in response to the member's complaint. And it should establish in its bylaws a rule disallowing such actions by EC members. If a member insists on the right to bring such an action, he or she may resign.
The Consequences of the Complaint
What are the consequences of the former judge's complaint? The lawyer was given a warning by the bar association, which someone paying attention to the case could reasonably believe would not have happened had not a former high-level judge and current EC member filed the complaint. In other words, it appears like a misuse of power and office.
Then the lawyer, represented by the ACLU, sued the bar association in federal district court, arguing that his speech was protected by the First Amendment. He too is defending his reputation. Why should the lawyer not protect his reputation when a state official did? This sort of escalation of a dispute is another typical consequence of officials putting their self-interest ahead of the public interest.
And another former judge, inspired by this story, has just published a satirical novel about it, Alice vs. Wonderland: A Chilling Tale of the Abuse of Power in the Name of Lawyer's Ethics.
In other words, an irresponsible decision by one EC member, who put his personal interest ahead of the public interest, has turned into a circus, making a mockery of both the state's legislative ethics program and the state's lawyer discipline system.
Robert Wechsler
Director of Research-Retired, City Ethics
---
The actions of one member of Kentucky's state legislative ethics commission has undermined the public's view of the EC and of the state's lawyer disciplinary system. This case shows why it is inappropriate for ethics commission members to respond in destructive rather than constructive ways when the EC is criticized for not taking action against officials, something that happens all the time in a healthy democracy.
According to an article in today's Lexington Herald-Leader, back in 2007 the legislative EC dismissed a complaint against the senate president involving campaign contributions allegedly solicited from lobbyists.
A lawyer and former state senator was angered by this dismissal, wrote a letter to the EC, and gave it to reporters. In this letter, the lawyer said he disagreed with the decision and that he felt what occurred was clearly illegal. The most controversial part of his letter, according to the article, read as follows:
-
[The closed-door hearing] gave cause for some to speculate that the deck
was stacked and the senator would be exonerated. I was not, and am not,
willing to go that far.
According to the article, the letter got little publicity. But a member of the legislative EC, a former state court of appeals chief judge no less, was enraged, and two days later he filed a complaint with the state bar association, which oversees the lawyer disciplinary system. Here is the principal rule of professional conduct under which the complaint was made (8.2(a)):
-
A lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public
legal officer.
The EC's executive director told me that the lawyer said that the EC’s decision “was contrary to the undisputed evidence that was presented," and that this was a false statement and reckless, because the lawyer did not know what evidence was presented. But still, this is less a false statement than an angry attack on a group of people who were appointed by top legislators, including the legislator against whom the complaint had been brought. When citizens vent their anger at such situations, they do tend to go overboard. This reflects not on the individuals, but on the procedure by which they are selected. It does not justify an EC member bringing a proceeding against the citizen.
Criticism Should Lead to Discussion of the EC's Procedures, Not to Complaints
The bottom line here is that no EC member should file any sort of complaint against anyone who criticizes the EC's processes and decisions. Beyond the First Amendment issues involved, doing so is a misuse of office.
ECs should welcome criticism, as the commentary to the rule of professional conduct says about courts. And EC members should expect to be criticized, especially when their EC is not seen as independent, due to the selection process (by house and senate leaders, who lead the people who come before the commission), and also not seen as open or fair. EC members can use such criticism as an occasion for their own criticism or defense of the EC's process. This is a healthy exercise. Filing complaints can only hurt the EC's reputation and, therefore, the trust people place in the state's ethics program.
The former judge did something he should not have done. He did it to protect his personal reputation, and the reputation of the EC, apparently giving little thought to the fact that the action against the citizen would have a greater effect on the EC's reputation than the lawyer's words did (see below for some consequences of the EC member's conduct). I believe that someone who puts himself above the public interest in allowing citizens to freely criticize government decisions should publicly apologize for his action, explain to the public why what he did was wrong, and ask the bar association to withdraw the warning letter. The EC should also explain why it said or did nothing in response to the member's complaint. And it should establish in its bylaws a rule disallowing such actions by EC members. If a member insists on the right to bring such an action, he or she may resign.
The Consequences of the Complaint
What are the consequences of the former judge's complaint? The lawyer was given a warning by the bar association, which someone paying attention to the case could reasonably believe would not have happened had not a former high-level judge and current EC member filed the complaint. In other words, it appears like a misuse of power and office.
Then the lawyer, represented by the ACLU, sued the bar association in federal district court, arguing that his speech was protected by the First Amendment. He too is defending his reputation. Why should the lawyer not protect his reputation when a state official did? This sort of escalation of a dispute is another typical consequence of officials putting their self-interest ahead of the public interest.
And another former judge, inspired by this story, has just published a satirical novel about it, Alice vs. Wonderland: A Chilling Tale of the Abuse of Power in the Name of Lawyer's Ethics.
In other words, an irresponsible decision by one EC member, who put his personal interest ahead of the public interest, has turned into a circus, making a mockery of both the state's legislative ethics program and the state's lawyer discipline system.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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