The Effect of the Wisconsin Supreme Court Open Meetings Decision on Local Government Ethics
According to the Wisconsin Supreme Court majority, a state legislature
does not have to follow ethics laws, even ethics laws expressly
designed to meet constitutional requirements. This shocking statement
comes from <a href="http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&se…; target="”_blank”">the
opinion
in the case <i>Wisconsin v. Fitzgerald</i></a>, which I discussed in <a href="http://www.cityethics.org/content/wisconsin-legislature-seeks-make-open…; target="”_blank”">a
recent
blog post</a>. The opinion came down on Tuesday, in a case about
whether a legislative committee violated the state's open meetings act
in passing the infamous government union collective bargaining bill
with only two hours' notice. This post will consider this decision's effect on local government ethics, at least in Wisconsin.<br>
<br>
The court said that it “will not determine
whether internal
operating rules or procedural statutes have been complied with by the
legislature in the course of its enactments.” On separation of powers
grounds, the court determined that it cannot do any more than determine
whether the state constitution was itself violated.<br>
<br>
One of the majority judges, concurring, went a step further, quoting
from an earlier decision: "</span>the legislature by statute or joint
resolution cannot bind or
restrict itself or its successors as to the procedure to be followed in
the
passage of legislation."<br>
<br>
Does this decision also apply to conflicts of interest, and also to
local governments? Can no
court, at least in Wisconsin, make any decision regarding ethics
matters, since ethics matters too could be considered procedural and
not constitutionally based? Will this decision add firepower to
arguments based on the actually constitutional Speech and Debate Clause?<br>
<br>
Imagine this situation. The council of a city in Wisconsin is
considering the approval of a waste contract with a company, whose
president is the council president's brother. The council president is
asked by citizens to withdraw from the matter, but refuses to do so. In fact, he makes it
clear to his colleagues that they better not question the contract,
because this is very important to him. The contract is approved by a
vote one short of unanimous. The one council member who opposed the
contract files a complaint with the city's ethics commission, and the
council president seeks an injunction from the local superior court,
arguing that the state's Speech and Debate Clause (to the extent it
applies to council members) prevents the proceeding from going forward
and, in any event, the council is not bound to follow the ethics code
with respect to the passage of legislation.<br>
<br>
Will the court give the council president an injunction, which would
effectively remove the council (and other councils) from the EC's jurisdiction and make them self-regulating with respect to ethics? If so,
should Wisconsin ECs simply recognize they have no effective
jurisdiction over council members? Going one step further, do Wisconsin
council members have an obligation to make jurisdiction over them
clear, that is, to debate the issue and, if they want the EC to have
jurisdiction over them, to expressly give the EC jurisdiction over them
both through legislation (which is, according to the Supreme Court,
non-binding on council members) and through express individual waivers
of any right to question the EC's jurisdiction over them?<br>
<br>
I think they have this obligation. But I doubt that a single council
will do this. Why should they? The Supreme Court has arguably given them a blank check, which can be ripped up only by voters again and again voting them out of office until they give their EC jurisdiction over them.<br>
<br>
Of course, this decision may not be applied to councils, and it may not be applied to conflicts of interest. But on the other hand, I would be surprised not to see this decision cited in briefs all over the country when ethics matters come before courts. The decision adds one more weapon to the growing store of arms in opposition to EC jurisdiction over officials involved in legislative activity.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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