Another Strike Against the Honest Services Statute in a Local Government Context

Back in January, I wrote about the California Supreme Court's decision in a criminal conflict of interest prosecution against members of a San Diego pension board. In that post, I wrote about how to solve the problem that led to the case's dismissal: local government employees being considered a class (like businesspeople or senior citizens) that is excepted from the conflict of interest provision (in my solution, a council member over 65 can vote on a senior citizen center, but a council member who is a town employee cannot vote on a town employee pension matter).

Last month, a federal district court reached a decision on the same matter. However, it was prosecuted under the honest services statute (I discussed the statute here). The court found the honest services statute too vague for prosecution in this case, since it was not a matter of local government officials putting money in their pockets, even though they benefited from their decisions along with other local government employees.

The court found that "the potential breadth of the undefined honest services provision leaves open the potential for ad hoc and after-the-fact definitions of crime which do not give fair notice or guidance to citizens employed in government service. This is especially true for the conflict of interest-type prosecutions."

This issue will soon be decided by the U.S. Supreme Court (see my blog post on this), which will be considering three different prosecutions made on the basis of the honest services statute.

According to an article yesterday on the San Diego 6 website, the district attorney has dropped the conflict of interest charges in this case.

Robert Wechsler
Director of Research-Retired, City Ethics

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