The Enforcement of Ethics Laws Against Local Government Legislators

Anonymous

Mon, 06/02/2008 - 06:48

Jurisdiction

The decision of the Louisiana First Circuit Court of Appeal in <a href="http://www.la-fcca.org/Opinions/Pub2008/2008-05/2007CW2342May2008.Pub.1…; target="”_blank”">In
re Arnold</a> (May 23, 2008) causes serious problems with respect to
ethics enforcement against local government legislators, at least in
Louisiana. It opens up a can of worms that I haven't seen discussed
(I'd appreciate being alerted to where it has been discussed). 
 
The court decided that the Legislative Privileges and Immunities Clause
in the Louisiana Constitution, better known as the Speech or Debate
Clause in
the U.S. Constitution, prevents an independent ethics board from making
decisions regarding state legislators with respect to their actions in
a "legitimate legislative sphere," despite the fact that the
legislature passed the bill creating the ethics board and approved the
members of the ethics board, which were selected by the presidents of
private colleges in Louisiana. 
 
In the Arnold case, the
decision regarded two legislators' failure to withdraw from
participation in a matter that involved the financial interests of
family members. 
 
Here's the Speech or Debate Clause language, from Article I, Section 6
of the U.S. Constitution:<ul>

<div>for any Speech or Debate in either
House [Senators and Representatives] shall not be questioned in any
other Place.</ul>
</div>

Before you think this has nothing to do with local governments, please
consider that the Supreme Court has determined that the Speech or
Debate Clause (and the common law that preceded it) applies equally to
local government legislators. The
decisions are <a href="http://www.law.cornell.edu/supct/pdf/96-1569P.ZO" target="”_blank”">Bogan
v. Scott-Harris</a> 523 U.S. 44 (1998), which gives absolute immunity
from civil
liability to local officials performing legislative functions, and <a href="http://supreme.justia.com/us/493/265/" target="”_blank”">Spallone v. United States</a>,
493 U.S. 265 (1990), which gives immunity from a contempt proceeding.

As for criminal proceedings, <a href="http://supreme.justia.com/us/442/477/case.html" target="”_blank”">U.S. v. Helstoski</a>,
442 U.S. 477 (1979), upon which the Louisiana court depends, makes it
clear that the Speech or Debate Clause applies equally to criminal
cases, including, in this case, political corruption actions. 
 
But it does not appear that the Supreme Court has applied the Speech or
Debate Clause to ethics proceedings, especially those specifically
approved by the legislature. The issue has not come up at the
federal level, because Congress does not provide for independent ethics
enforcement. 
 
Institutional Waiver 
Can't a legislature waive its rights by passing an ethics code? The
Louisiana court applied the standard from the Helstoski decision: a
legislature cannot be considered to have waived its rights
unless it can be shown that the waiver was done by an "explicit and
unequivocal expression." That is, passing a bill providing for ethics
enforcement for all public officials, without creating an exception for
legislators, is not sufficiently explicit or unequivocal. 
 
In fact, even such a clear legislative waiver might not be good enough.
The Supreme Court in <a href="http://supreme.justia.com/us/408/501/case.html#507" target="”_blank”">United
States v. Brewster</a>, 408 U.S. 501 (1972) (a criminal case),
said, "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." I
don't believe the Supreme Court has decided this issue, but it has
consistently recognized that the Speech or Debate Clause, because it is
about individuals, may not be institutionally waivable. Therefore, it
is likely that a city council could not waive a city councillor's right
not to be prosecuted pursuant to a city ordinance. 
 
The bottom line is that local government ethics laws may not be
enforceable by an independent ethics board against local government officials acting in "a legitimate
legislative sphere," which would certainly include the enforcement of
recusal rules not only in councils, but in other bodies as well, when
the activity applies not to just one or a few parties, but more
generally, as in many planning and zoning issues. 
 
Distinguishing the Decisions 
But are there any differences, for example, between ethics enforcement, on the one
hand, and civil or criminal proceedings, on the other hand? There
are two things that can be done here. One is to distinguish Helstoski and Brewster. Two is to look at the
reasons behind the Speech or Debate Clause, and see how they apply to ethics enforcement. 
 
Helstoski and Brewster involve the content and
motive of the legislative act, and would require the presentation of
evidence about legislative activity, which is not permitted under the
Speech or Debate Clause. Arnold
concerns only the fact of the legislative act, and would require no
evidence about the content of legislative activity (no questioning of
any speech or debate), only recognition of a fact (speaking at all)
over which there is no dispute. It does not matter whether the
legislators spoke in favor of the relatives, or against them. The
only issue was their withdrawal from participation. At first
blush, this seems disingenuous. Of course, the rule is there to
prevent officials from speaking in favor of their relatives. But
doesn't recusal also protect legislators from having to favor the
public interest over the interest of their family members?
Recusal rules are a two-edged sword, even though they are usually
considered to be one-edged. 
 
In any event, it's not clear that any speech was being questioned by the ethics board, which is what the Speech or Debate Clause prevents. At least in terms of the content of the legislators' speech. It's not clear that a court has determined that the mere fact of speech, whatever its content, is covered by the Speech or Debate Clause. After all, the clause is intended to protect a legislator's obligation to speak for his or her constituents. That's about the public interest. Ethics laws concern conflicts between private and public interest, and that's exactly what the ethics board was determining. It had no desire or need to concern itself with the content of the legislators' speech, which is why no evidence of it -- or questioning of it -- was necessary to reach its conclusion. 
 
Helstoski and Brewster involved generally
applicable laws. Arnold
involves a law limited to public officials, that is, to a group that
includes legislators. Frequently, as at the federal level,
legislators are totally excluded from ethics laws they themselves pass.
Yet the Louisiana Legislature chose not to exclude itself.
Although not "explicit and unequivocal expression," it is certainly an
undeniable expression. No one with a straight face could argue
that the legislature did not waive its immunity. Whether it could waive
the immunity of individual legislators is another question. 
 
Also see the discussion of separation of powers in the next section, in which I distinguish another aspect of Arnold. 
 
The Reasons Behind the Speech or
Debate Clause 
There are a lot of reasons given by the Supreme Court for the Speech or
Debate Clause. One especially interesting argument, made in Spallone, is that a legislator must
be protected from
sanctions, so that when he or she votes, the vote is done purely with
respect to the interests of the city, not with respect to the
legislator's personal interests. In this case, the city was
ordered to enact an Affordable Housing Ordinance or to pay a
"bankrupting fine." If the legislator were to vote for the Ordinance to
prevent from paying the fine himself, that would be far worse than
voting for
the Ordinance to prevent the city from having to pay the same fine.
Effectively, if a council member could be found in contempt for not
following the law, there would be a conflict of interest between his
view of what is best for the city and his personal financial interests.
If contempt proceedings could not be brought, the conflict would be
between the council member's view of what is best for the city and the
city's financial interests, the sort of conflict that is part of the
democratic process. 
 
However, in the Louisiana case, there was never the sort of conflict
that is part of the democratic process. There was what is considered to
be the wrong sort of conflict of interest. And it didn't have to do
with a vote. What it had to
do with was simply speaking in favor of a bill that would financially
aid a family member. This reason for applying the Speech or Debate
Clause does not apply to a recusal situation. 
 
A principal argument for the Speech or Debate Clause is that
legislators hold and exercise their powers for the public good, and are
therefore exempt from all liability for using them mistakenly.
But there's no mistake in this instance. The public good was
already determined by the Legislature, and that was to withdraw from
the matter. This definition of the public good would apply whether enforced by an independent board or by a legislature. 
 
Another argument involves the separation of
powers: preventing the judicial and executive branches from
getting
involved in internal legislative matters. The Louisiana Court of Appeal
finds a separation of powers issue in Arnold,
treating the ethics board as part of the executive branch. But is it?
Its members are not selected by the executive branch, it is not
answerable to the governor or any other member of the executive branch.
Nor is it part of the judicial branch. Is there a separation of powers
issue when a legislature creates an independent body answerable to no
one? The Arnold court did not
answer this question. But it is clear that an independent ethics board
is "another place" than the legislature, pursuant to the Speech or
Debate Clause. 
 
A related argument says that the exercise of legislative discretion
should not be inhibited by judicial interference or distorted by the
fear of personal liability. A corollary to this argument is that
interference may be political or partisan in motivation, and that no
party or view should in any way prevent the free exercise of a
legislator's powers. This argument is more difficult to refute under
the circumstances of Arnold.
However, the possibility of political or partisan interference exists more when a legislature deals with ethics issues than when the issues are dealt with by a body as independent as the state ethics board. As the Supreme Court said in the Brewster case, "Strong arguments can be made that trials conducted in a Congress with an entrenched majority from one political party could result in far greater harassment than a conventional criminal trial...." 
 
Another argument involves the time and energy required to defend
against a suit, which the Supreme Court in Bogan found to be "of particular
concern at the local level, where the part-time citizen-legislator
remains commonplace. ... And the threat of liability may significantly
deter service in local government." These arguments are very
familiar to government ethics professionals. But they are equally applicable when ethics issues are handled by local legislatures. 
 
The Supreme Court
followed these arguments with the ultimate argument: "the ultimate
check on legislative abuse --- the electoral process ...
self-discipline and the voters must be the ultimate reliance for
discouraging or correcting such abuses." So much for ethics laws
applying to elected officials. 
 
Here's another argument, made by Kathleen Allen for the Louisiana Board of Ethics in a brief:<ul>

<div>As stated in State v. Township of Lyndhurst, 278 N.J.Super. 192, 650 A.2d 840,
“[T]he purpose of the [Privileges and Immunities Clause] is to protect the individual legislator, not simply for his own sake, but to preserve the independence and thereby the integrity of the legislative process.” The purpose of the Code of Ethics is to preserve the integrity of the legislative process as well.</ul>
</div>

Allen also cites similar language in Helstoski. This is important, because the position of the Louisiana legislators seems to be that they are being protected, as if it had something to do with personal rights. And even if it did, personal rights come with responsibilities, and a legislator's responsibility is to act not in his or her private interest, but in the public interest. There's a virtuous circle here, and the ethics code and Speech or Debate Clause are spinning around that circle together. It's only the legal approach to the question that pictures them going in opposite directions. It's difficult to prove that approach is wrong, but as long as you're not a legislator, it certainly appears to be wrongheaded. 
 
So Now What Do We Do? 
Here's what the Arnold court
concluded: 
 
<div>[W]e reject the Board's argument that
our holding will exempt all legislators from the Code of Governmental
Ethics when their actions may be within the legislative sphere. On the
contrary, our holding herein does not exempt legislators from the
duties imposed upon them in the Code; rather it merely provides that
any alleged violation of those duties occurring within the legitimate
legislative sphere may not be questioned elsewhere other than in the
legislature. Thus, pursuant to LSA Const. art III. sec 8, where a
legislator's actions within the legitimate legislative sphere, such as
speech, debate, and voting on matters before the legislature,
constitute an alleged violation of the Code of Governmental Ethics, the
Board of Ethics is without jurisdiction to question or punish such
action. Nonetheless, the legislator is not exempt from questioning and
punishment for those actions. Instead the power to question the
legislator in such an instance is within the sole province of the
legislature. 
</div>
 
A little more than a year ago, I wrote <a href="http://www.cityethics.org/node/254" target="”_blank”">a blog entry</a> on this
case (which contains a debate with one of the two legislators) just as
the case was being brought, and worried about its implications for
recusal. But I didn't check out the Supreme Court cases, which has
increased my worries and made them more concrete. What would I say now
to a city council working on an ethics code? Would I recommend that, if
it wants to give an ethics board jurisdiction over the council, that it
express this explicitly and unequivocally? Or would I say that
even this may not be enough, that a particular council member could say
that only he or she could make the waiver? Would I recommend that the
council try to make a clear definition of what constitutes the
"legitimate legislative sphere," providing guidance thereby not only to
council members but also to the members of other boards and
commissions? Would I act unethically, ignoring the issue altogether? 
 
My guess is that if you described the state of the law to most city
attorneys or council members, they would recommend exempting council
members from ethics laws, at least to the extent that they are acting
in the legitimate legislative sphere. And since defining this
sphere would be difficult, they might choose to exempt themselves
totally, which, by chance, is what most legislatures prefer. 
 
One thing that would be very useful is for state and municipal ethics
professionals, through COGEL, to come up with a model definition of
"legitimate legislative sphere," in order to make it more difficult for
state and local legislatures to totally exempt themselves from ethics
laws. <a href="http://www.legis.state.wv.us/wvcode/code.cfm?chap=04&art=1A" target="”_blank”">One very detailed approach</a> to this definition, and the entire concept of legislative immunity, can be found in West Virginia's statutes. It explicitly makes an exception from legislative immunity for <a href="http://www.legis.state.wv.us/wvcode/code.cfm?chap=06b&art=1" target="”_blank”">the state ethics code</a>. 
 
But the first thing to do is to open this subject up to debate, both in
terms of what the law is and how it affects state and local government
ethics, and in terms of what can be done in response. 
 
Additional Reading: 
The issue is always discussed in terms of state legislators (and usually state constitutions), even though the federal Speech or Debate Clause applies equally to local government legislators. 
 
<a href="http://www.projo.com/news/content/MONTALBANO_ETHICS_08-22-07_896R0HD.34…; target="”_blank”">A newspaper article</a> about a similar 2007 controversy between the Rhode Island Ethics Commission and the state senate president. The senate president <a href="http://www.projo.com/news/content/MONTALBANO_APPEAL_09-01-07_V56VFLE.30…; target="”_blank”">appealed to the Superior Court</a> on Speech or Debate grounds, but then <a href="http://www.beloblog.com/ProJo_Blogs/newsblog/archives/2007/09/update_mo…; target="”_blank”">settled days later</a>, paying a fine in return for dropping charges based on senate votes, so the issue was never adjudicated). 
 
Later in 2007, according to <a href="http://www.projo.com/news/content/ETHICS_IRONS_12-19-07_488ACFP_v13.2c2…; target="”_blank”">another article,</a> a suit was brought against the Ethics Commission by a former state senate president on similar grounds (William V. Irons v. Rhode Island Ethics Commission, Superior Court C.A. No. 07-6666). This suit appears to be pending. 
 
<a href="http://www.anchorrising.com/barnacles/004536.html" target="”_blank”">A blog entry</a> discussing a possible exception for ethics enforcement to the usual application of the Speech or Debate Clause, relating to the first Rhode Island situation., 
 
<a href="http://www.ncsl.org/lrl/sharpiro05.htm" target="”_blank”">Larry Shapiro</a> on how freedom of information laws are limited by the Speech or Debate Clause, including a look at institutional waiver. 
 
<a href="http://ftp.fas.org/sgp/crs/misc/RL33668.pdf" target="”_blank”">A 2007 Congressional Research Service report</a> on recent developments in Speech or Debate Clause law has a good list of topics the clause applies to and does not apply to, and the relevant cases (pp. 5-7). 
 
<a href="http://hawaii.gov/ethics/opinions/IAO/1990s/IAO97-03.pdf" target="”_blank”">An informal advisory opinion</a> of the Hawaii State Ethics Commission on a speech or debate issue. Hawaii's constitutional immunity language is broader than the U.S. Constitution because it specifically includes actions in addition to speech: "No member of the legislature shall be held to answer before any other tribunal
for any statement made or any action taken in the exercise of his legislative
functions." But the opinion considers federal cases, as well. 
 
<a href="http://klec.ky.gov/NR/rdonlyres/9FE336D2-DFFB-40C3-95EE-11D3F7DCC1A9/0/…; target="”_blank”">A 1996 Kentucky Ethics Commission decision</a> considering what are and are not legislative acts with respect to the Speech or Debate Clause. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics

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