Non-Substantive Considerations for Dismissing Ethics Complaints

Why is it so hard for officials, personally or in drafting ethics codes, to let an ethics commission do its work, dismissing complaints that lack validity (i.e., that do not state an ethics violation by someone under the ethics program's jurisdiction or for which there is insufficient evidence)? Why, instead, do they create and take advantage of non-substantive considerations for dismissal of complaints in order to take revenge on complainants?

I ask this question after reading a Kentucky Center for Investigative Reporting article from yesterday that shows how the Louisville Metro Council president has, in his response to a series of ethics complaints filed against him, asked that the complaints be turned over to the district attorney for possible criminal prosecution of the complainant.

Sadly, this request is suggested by the ethics code itself, which of course is the product of the very council that the president presides over.

Here is the relevant provision:

§21.06(E) No person shall file a complaint against a Metro Officer with the Ethics Commission which complaint is false, or made in bad faith, or with actual malice, or without probable cause. In the event that such a complaint is filed with the Ethics Commission, it shall be forwarded to the Commonwealth's Attorney, together with all electronic and documentary materials related to the complaint, for action as that official may deem appropriate.

There are two things remarkable about this provision. One is that it effectively requires an EC not only to dismiss invalid complaints, but with respect to each dismissal, to make separate determinations (1) that the complaint is not false (which could be interpreted as containing any statement that is not wholly true, requiring the EC to consider all the allegations and make determinations on their accuracy without, presumably, holding a hearing, since it has decided to dismiss the complaint; thus, there is no due process for the complainant); (2) that the complaint was not filed in "bad faith," however that can be proven; (3) that the complaint was not filed with "actual malice," which generally requires the EC to determine whether the complainant acted with reckless disregard to the truth, which can include making allegations without sufficiently investigating them, even though it is the ethics program that is supposed to do the investigation; and (4), most incredibly, that there is no probable cause, even when probable cause can only be determined after an investigation and even though a finding of no probable cause means, in every other jurisdiction, that a complaint be dismissed, not turned over to a district attorney for criminal enforcement.

I have never seen such an outrageous, anti-complainant provision. First, it creates a huge amount of unnecessary work for the EC. Second, it places any potential complainant in jeopardy of prosecution, making it unlikely that any normal person would file an ethics complaint. It is sad that, after reading such an outrageous provision, a council president would have the audacity to expressly ask the EC to fulfill its obligations under it, rather than recognizing it as a provision that should be removed from the ethics code.

All this is in addition to the following warning on the ethics complaint form:

I understand pursuant to KRS 523.010 et seq, a false statement made under oath and without belief could affect the outcome of any proceeding before the Ethics Commission, and may subject me to penalties including fines of up to $500 or 12 months imprisonment.

It gets worse. The EC apparently did not feel this was enough. So in its rules and regulations, it added the following provision:

The Commission shall dismiss without hearing any complaints that appear to be frivolous on their face, not reasonably comprehensible, filed principally for the purpose of harassment, or which pertain to a person not within the definition of persons against whom the Ordinance may be enforced. The Complainant shall be informed in writing in all cases of the action taken by the Commission on each complaint.

To falsity, bad faith, actual malice, and lack of probable cause, the EC added frivolousness, incomprehension, and harassment as ways to prevent complaints being considered, even if they are valid. And all of these additional obstacles to ethics enforcement are vague, giving the EC great leeway in dismissing any complaint it doesn't like.

No EC should be permitted to determine what is "frivolous" and what is not. If it's not valid, who cares whether or not a complainant was acting "frivolously"? And why waste time determining this? And if the complaint is valid, how could it be "frivolous" in any meaningful way? Yes, this provision is itself "frivolous."

As for "harassment," we're not talking about stalking or improper physical contact. We're talking about filing an ethics complaint. Many people who file ethics complaints do it to harass an official. Without political motives, there would be many fewer ethics complaints. But if even one allegation is possibly valid, an EC should look into it enough to know whether there is any validity. And if it's dismissed, it should be dismissed because there is no validity, not because there was an intent to harass.

And as for "reasonable comprehensibility," some people who file ethics complaints are not very good communicators. If there one comprehensible allegation, then the complainant should be contacted and the EC should try to elucidate verbally what the complainant intended to say. If there is no comprehensible allegation, then the complaint should be dismissed as not making an allegation of an ethics violation, but even here, if something seems to relate to a possible ethics violation, the cover letter should suggest that the complainant take the complaint to a lawyer or someone else who can restate the allegations in terms of the ethics code.

In short, Louisville's ethics program unnecessarily makes it too hard for complaints to be filed, to be considered, and to be heard, and too easy for the EC to dismiss possibly valid complaints. The Metro Council needs to remove the obstacles, and let the EC dismiss just on the grounds that no ethics violation has been alleged against someone under its jurisdiction, or that there has been no violation.

Officials' Duty to Determine Whether There Is a Conflict
The council president raises a valuable issue, according to the article. In his response, he asks the EC for an advisory opinion regarding whether council members have an “implied duty” under the ethics code to look into the identities of the parties with an interest in zoning cases that come before the council. As it is now, this information is not provided before a vote, and there can be several votes per meeting involving many parcels and owners.

There are two ways to deal with this problem. One is for all parties seeking zoning permits to provide a full list of all property owners and their spouses, and to either provide the list in advance so that officials or their aides can look through them, or read the names out at the time of the vote.

The other way is to take the council out of approving mass land use permit requests. Let a zoning board deal with this. Its members and staff can better focus on possible conflicts. The question should be asked whether it is necessary, not to mention appropriate, for a busy council to approve matters it knows nothing about.

Robert Wechsler
Director of Research-Retired, City Ethics

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