Louisiana Legislators Sue Ethics Board - Including Dialogue with One of the Legislators

From: Jeff Arnold, Louisiana State Representative District 102

My response to you is not about any pending legislation, rather it is about the constitutional rights of free speech and the "speech and debate" clause located in both the United States and Louisiana constitution. For you to state that a petition filed in a Louisiana court will have devastating affects across this country is tantamount to yelling "FIRE" when there is none. It may further your cause or goals but it does not make it the truth. Your attack on this petition is a direct attack on the democracy this country was built on.

The ethics board complaint specifically states that Rep. Heaton and I participated in a legislative debate. The petition only addresses the question: Does the ethics board have the authority to punish a duly elected legislator from participating in the legislative process? My petition does not take any authority away from the board, it questions the authority and position the board has taken. This petition in no way stops the Ethics Boards investigation unless the Judge rules that the Louisiana Constitution under Article 3 Section 8 allows legislators to freely participate in speech and debate during committee and floor discussions.

Over and over again, federal courts have appropriately held that the "Speech and Debate" clause does not shield legislators from having to answer for criminal acts. Instead, the Courts have determined the language protected only that relatively narrow category of action directly related to and furthering their official and defined responsibilities as legislators. Our founding fathers made it clear that a general legislative constitutional safeguard, which is embodied in article I, section 6, clause 1 of the U. S. Constitution, provides that Senators and Representatives "shall not be questioned" for "any Speech or Debate in either House": also in the case of United States V. Brewster, the Supreme Court made it clear that "It is beyond doubt that the Speech and Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process."

Deterring a legislator from advancing a point of view, or an opposing opinion is precisely the evil the speech and debate clause intends to prevent. I find it interesting that a website, which operates under freedom of the press and free speech, now supports the suppression of that very same freedom. Even Mr. James Gill (Times Picayune editorial writer and political critic) agrees that the "Ethics board takes up the wrong cause. Mr. Gill read the section of the Louisiana Constitution and says, "Legislators' privileges are spelled out in the Constitution, which says, No member shall be questioned elsewhere for any speech in either house. The (Ethics) board is wasting our time and our money." Mr. Gill also stated that: "The law allowed them to vote on the bill provided they filed statements attesting that they could play fair", we followed the law and filed a disclosure statement with the House of Representatives and the Ethics Board, that is not what the complaint or our petition are about.

If you are opposed to our Louisiana Constitutional law to let lawmakers freely participate in speech and debate, then have the strength to trumpet that stance. Merely ignoring the truth to bolster your argument is intellectual laziness at best and dishonesty at worst.

I will respond one at a time to the points Rep. Arnold made in his response to my blog entry concerning his suit against the Louisiana Board of Ethics.

In his first paragraph, he states that my concern about the devastating effect of his suit is tantamount to yelling "Fire!" when there is none. Yet Rep. Arnold himself says in his third paragraph that there is a safeguard in the U.S. Constitution (Art. 1, Sect. 6) providing that legislators may not be questioned for any speech they make in their legislature. If this safeguard were to be extended to cover participation in debate where the legislator has a conflict of interest, and the court's decision were to be appealed to the Supreme Court, it could affect ethics laws and boards across the nation. And if the decision were made on First Amendment free speech grounds, which is what I focused on in my blog entry, it could affect ethics laws and boards at all levels of government.

My attack on Rep. Arnold's suit is a "direct attack on the democracy this country was built on" only to the extent that our democracy is dependent on legislators participating in debates where they have a conflict of interest. His suit is a direct attack on government ethics, which generally requires recusal from participation and voting when there is a conflict.

I have done further research and found that, although this is the case generally for local government, state legislators in only twelve states (plus three others partially, and three others voluntarily) have applied the withdrawal requirement to themselves. I was wrong to say in my blog entry that state legislators follow the norm. But according to Rep. Arnold's position, fifteen states have directly attacked our nation's democracy.

Rep. Arnold's second paragraph is disingenuous. If a court finds that legislators may participate in debates when they have a conflict, then there is nothing for the Board of Ethics to investigate.

In his third paragraph, Rep. Arnold excerpts a Supreme Court decision to make it look like it favored his position, when in fact it is not all that clear. The majority decision in United States v. Brewster, 408 U.S. 501 (1972) allowed the District Court to pursue allegations against a U.S. Senator for soliciting and accepting bribes related to legislative speech. Here is the entire quotation:

"It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts. [Rep. Arnold's quotation stops here.] So expressed, the privilege is broad enough to insure the historic independence of the Legislative Branch, essential to our separation of powers, but narrow enough to guard against the excesses of those who would corrupt the process by corrupting its Members."

The majority decision makes it clear what the purpose of the Speech or Debate Clause is: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators. ... Our speech or debate privilege was designed to preserve legislative independence, not supremacy. ... [the authors of the Constitution] wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process."

Conflict of interest laws, like bribery laws, also try to preserve the integrity of the legislative process, by insisting that legislators act in the public interest rather than in their personal interest. And they insure the independence of legislators not "for the personal or private benefit" of legislators, as free speech rights do, but to protect these rights from being limited as representatives of the people. When a representative with a conflict of interest speaks, it appears that he or she is not acting as a representative of the people, but for his or her personal or private benefit. That is why, I believe, the Speech or Debate Clause does not apply to Rep. Arnold's situation. It is not the content of the legislator's speech that ethics laws are concerned with (and which the Speech or Debate Clause is intended to protect from interference by other branches), but the fact of speaking at all and, thereby, undermining public trust in government, which is essential to democracy.

As for James Gill's column, I disagree with his reading of the state constitution's speech or debate clause. However, I am no more an expert on it than he is (although I know a lot more now that I was spurred on to do research), which is one reason I did not deal with it in my blog entry. I had two other reasons for not dealing with this clause. One, it did not appear central to the arguments attributed to Rep. Arnold and his allies, which focused on free speech (now that I have read further articles, including Mr. Gill's, which did not come up in my searches, I realize that the Speech or Debate Clause issue is more central than I had realized). And two, I was more concerned with the free speech argument because, as I said in my blog entry, it would extend the decision to municipal legislators, my principal area of concern and the only reason I got involved in this issue.

Enough for what Rep. Arnold says in his response. What is equally important is what he does not say. Nowhere does Rep. Arnold mention "conflict of interest" or "withdrawal" or "recusal" or "obligations." Nowhere does he acknowledge any need to balance the interests of the public in legislators speaking in the public interest rather than in their own interest versus legislators' rights of free speech or not being questioned for their speech.

No right comes to a government official without a corresponding obligation. But Rep. Arnold ignores his obligations. He is concerned only about his rights. I believe that a legislator's obligations are far more important than his rights. Rights are primarily for citizens, to protect them from government officials. The need for legislators to be protected from the executive branch, as in the Speech or Debate Clause, is important, but hardly overriding in instances of misconduct. And it is not clear how much a part of the executive branch the Board of Ethics is, since its members come from a list independently put together by college presidents, and the legislature has a great deal of control over it (as it is showing by it plans to take away the Board of Ethics' jurisdiction over legislators).

A court may find Rep. Arnold's interpretation of the constitution correct, but he is wrong to ignore the conflicts and the obligations that come with being a government official. If he had paid attention to his ethical obligations, the Board of Ethics would not have interfered with his rights. He was completely in control of the situation, and he chose his personal interest over the public interest in having legislators with conflicts recuse themselves. Law is important, but to talk only about legal rights and not at all about ethical obligations is to add insult to injury.

Robert Wechsler
Director of Research-Retired, City Ethics
[email protected]

My problem with your response is that you do not address the initial charge of conflict of interest. You only address part of the story, not the whole story. If we are not successful with our petition then I still intend to fight the charges before the Louisiana Ethics Board. The issue at hand is that I participated in a legislative discussion in which the results of that issue would be one of a fiscal impact on an immediate family member. The charge is not that I voted on the issue it is that I participated in the discussion. It was made clear to all parties that my father was indeed a tax assessor from the City of New Orleans.

Now, how would he (my father) be affected by the legislation at hand? The legislation was a constitutional amendment to reduce the number of Assessors in Orleans Parish from 7 to 1 in the year 2010. In order for my father to have a fiscal impact the bill had to:

1. Pass the legislature by Feb. 2006 (Failed), June 2006 (Passed)
2. Dad had to get re-elected in April 2006 (He won 67%)
3. The Constitutional Amendment had to pass in Nov. 2006 both state wide and in Orleans Parish (Passed in both)
4. Dad would have to run for the 1 (one) Assessor and lose in 2010.

Now that is a lot of if's, the legislative vote itself only put the measure on the ballot, it still had to go thru all steps in order to impact my father. So the question is, did we violate "ethics" by asking questions in a public meeting. I don't think so, it the legislative instrument had a direct impact on my father such as a pay raise or elimination of the office with out a vote of the people (entire state), then I would not be so staunch in my stance.

It is easy for you to sit up in your office on the east coast and judge and dissect my response to your blog, but If I can appear before a public meeting as a citizen and simply ask questions, then why can I not do the same as an elected representative? That is the attack of democracy that I speak of, I am not promoting the voting on direct conflicts of interest. I believe in transparency in Government on all fronts, and everyone involved in this process understood that I was the most knowledgeable person on this subject. Why would you support silencing an opposing opinion?

You are right. I apologize for assuming that, because you declared a conflict, that you actually had a conflict. It is possible that the Board of Ethics would find, after an investigation, that the conflict you had was not direct enough to require withdrawal from participation. I did not address this part of the story because it is not relevant to the law suit, from what I understand about it. I believe that there is a conflict, but I would have no problem with the Board of Ethics deciding your conflict was or was not sufficient to require withdrawal. I only believe that it should have the opportunity to consider it. Whatever decision they arrive at will provide guidance for other legislators, both state and local, in the future.

The difference between a citizen speaking in favor of a personal interest at a public meeting, and a legislator speaking in favor of a personal interest in his legislature is that citizens are expected to speak in favor of personal interests and legislators are expected to speak in favor of the public interest. That is the essence of conflict of interest rules.

Democracy requires that a representative represents his or her constituents. For a representative, this trumps the individual's right to speak for his or her personal interests. Democracy also requires that it not appear that government officials favor their personal and family interests, because this undermines trust in government and leads people not to participate in government.

Robert Wechsler
Director of Research-Retired, City Ethics
[email protected]

The problem is that Louisiana is about to convene its 2007 session. There is a question among legislators as to what they can and cannot say or do during this session. We hope to have a quick judgment to our petition. If you wish to study Louisiana case law, I have provided plenty for you to digest.

I filed this suit for a single purpose. This suit is not a contest of facts. This suit is not a contest over the interpretation of a statute. And most certainly, this suit is not an attempt to carve out a blanket exception for legislators to the Code of Ethics. The sole purpose of this suit is to have this Court decide whether the Legislative Speech Privilege contained in Art. III, 8 bars the Defendant Board of Ethics from investigating, prosecuting, adjudicating, and punishing me for participation in the legislative process during their service in the Legislature when acting within the sphere of legislative activity protected by that constitutional provision.

ESSENCE of this CASE

I asked this Court to declare that the Legislative Speech Privilege contained in Art. III, 8 of the Louisiana constitution is an absolute bar against the Board of Ethics pursuing the course it has taken against two elected and serving members of the Louisiana House of Representatives. The Board of Ethics admits in its 'Memorandum in Support of Declinatory and Dilatory Exceptions' that it has voted to conduct an investigation of us, that its staff has conducted such an investigation, and that the Board of Ethics has voted to refer the results of that investigation to a public hearing before the Board of Ethics. There can be no doubt that the Board gives no credence whatsoever to the language of Art. III, 8, which provides, in part: 'No member shall be questioned elsewhere for any speech in either house.' I contend that Art. III, 8 is an absolute bar against the Board of Ethics pursuing its current course against me. Herein lies the contest: the Board of Ethics states it possesses the legal authority to pursue its course against me, and I claim the very words of Art. III, 8 bar the Board of Ethics from pursuing that course.

INTERPRETATION of the CONSTITUTION

It is well established that constitutional interpretation is the sole province of the judicial branch of government. LA const. art. II, 1; art. V, 1; Marbury v. Madison, 1 Cranch (5 U.S.)137, 2 L.Ed. 60 (1808); Marionneaux v. Hines, 2005-1191 (La. 5/12/05), 902 So.2d 373, 376-377; Bourgeois v. A.P. Green Indus., Inc., 2000-1528 (La. 4/3/01), 783 So.2d 1251; Midboe v. Cmmsn on Ethic for Public Employees, 94-2270 (La. 11/30/94), 646 So.2d 351; Succession of Lauga, 624 So.2d 1156 (La. 9/10/1993); State v. Peart, 92-0907, (7/ 2/1993) 621 So.2d 780; State v. Tucker, 626 So.2d 707, (La. 1993); St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La. 1992) (Dennis, J., concurring); State v. Perry, 610 So.2d 746 (La. 1992); Sibley v. Board of Sup'rs of Louisiana State University, 477 So.2d 1094 (La. 1985); Bradford v. Department of Hospitals, 233 So.2d 553 (La. 1970). As the Supreme Court wrote in Midboe:

The judicial power of the state is constitutionally vested in the courts. La. Const. Art. 5 1. The Commission is not a court but is an administrative agency in the executive branch of state government. See, Bagert v. Bd. of Ethics for Elected Off., 594 So.2d 922 (La.App. 1 Cir.1992). An administrative agency does not have the authority to determine the constitutionality of statutes. See Church Point Wholesale Beverage v. Tarver, 614 So.2d 697, 702 n. 8 (La.1993), and Red River Coors, Inc. v. McNamara, 577 So.2d 187 (La.App. 1 Cir.), writ denied, 582 So.2d 1306 (La.1991) (Board of Tax Appeals does not have authority to decide the constitutionality of statutes); Bell v. Dept. of Health and Human Resources, 483 So.2d 945, 947 n. 1 (La.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986), and Appeal of Brisset, 436 So.2d 654 (La.App. 1 Cir.), writ denied, 441 So.2d 749 (La.1983) (Civil Service Commission does not have the authority to decide the constitutionality of statutes). Thus, the district court, and not the Commission, had jurisdiction to rule on the constitutionality of the statutes. Midboe, 646 So.2d at 355. The judicial branch of our government is the sole arbiter of the meaning and applicability of provisions of our constitution.

Seeking a judgment from this Court, a part of the judicial branch, is the only avenue open to me for an interpretation of Art. III, 8. Contrary to the Board of Ethics' assertions, this matter rests solely and completely within the jurisdiction of this Court. This suit presents only a question of constitutional interpretation: does the Legislative Speech Privilege in Art. III, 8 of the Louisiana Constitution bar the Board of Ethics from investigating, prosecuting, adjudicating, and punishing Legislators based on their participation in the legislative process during their service in the Legislature when acting within the sphere of legislative activity protected by that constitutional provision?