Legislators' Independence of Ethics Enforcement

Anonymous

Mon, 07/05/2010 - 05:25

Advisory Opinions

On Independence Day weekend, it's worth remembering that independence
does not come cheap, and that there are some things that are more
important than independence. 
 
One of those things is the public trust. There is a serious cost to our society
when government officials place their independence from ethics
enforcement above the public trust, that is, when government
officials insist on legislative immunity.
And there is a cost to officials, too: their trial not
by a neutral body in a formal proceeding that the public can have trust
in, but rather by partisan accusations and media coverage based on the manipulation of limited facts and a limited understanding of the issues involved.

No government official is as independent as the recent judicial
opinions on legislative immunity would have us believe. Nor is
independence an absolute value, whether because it is written in a
constitution or statute, or because it is ensured by ancient common law
from the days of kings and queens. 
 
The occasion for these words is not only Independence Day, but two
judicial decisions last week that have struck a big blow to the enforcement
of government corruption. The first was the the Supreme Court's
Skilling v. U.S.
decision last week (see <a href="http://www.cityethics.org/content/supreme-court-decision-honest-service…; target="”_blank”">my
blog
post
on
the decision</a>), which struck a big blow against federal
enforcement of government corruption laws. 
 
The second, and the topic of this blog post, was Thursday's unanimous
opinion of a three-judge tribunal of the Maryland Court of Special
Appeals, <a href="http://mdcourts.gov/opinions/cosa/2010/861s09.pdf" target="”_blank”">Maryland
v.
Holton</a>, which struck a big blow against state enforcement of
government corruption
laws, at least in Maryland (the case involved a member of the Baltimore city council). And there is dictum that would likely be
applied to state and local ethics commission enforcement of local
ethics codes. 
 
Federal and State Jurisdiction Over Local Officials' Bribery and
Unethical Conduct 
The Skilling decision essentially said that the feds can't go after
conflict of interest misconduct short of bribery — in our context, the
federal government has no jurisdiction over local government ethics
unless there's bribery. The Holton decision essentially said that the
state can't go after local legislators' bribery unless it can be proved
without any evidence regarding legislative conduct (due to legislative
immunity) — in our context, state governments cannot do anything about
bribery by a local legislator where the legislator's quid pro quo
involves his or her legislative conduct. It would appear that the same
would be true of conflicts of interest short of bribery, where the
legislator's participation is necessary to prove that an ethics
violation has occurred. 
 
Who Will Investigate Local Misconduct? 
This leaves the feds in charge of handling local bribery, but out of
the rest of local government ethics. So, when the feds decide whether
to investigate reports of a local legislator's unethical conduct, they
have to be pretty sure that there's bribery involved (and that they can
prove it), or they won't bother. 
 
When a Maryland prosecutor decides whether to investigate reports of a
local legislator's unethical conduct, she must be sure that no evidence
of participation or a vote needs to shown, and most conflicts of
interest involve legislative participation. 
 
By the way, the term "local legislator" generally includes not only
council
members and their staffs, but also planning board members and others
who act in a
legislative manner. It can even include city and county managers, and
their staffs, when
dealing with legislation, directly or indirectly. 
 
The Appellate Opinion 
The Holton opinion affirms nearly all the conclusions of the trial
court, which I criticized in <a href="http://www.cityethics.org/content/problematic-baltimore-legislative-imm…; target="”_blank”">an
earlier
blog
post</a>. It affirms that common-law legislative immunity
is "co-extensive" with constitutional legislative immunity
(fortunately, the appellate court dropped the trial court's crazy
language regarding a "unified theory" of legislative immunity). The
appellate court, like the
trial court, ignores the differences between official and legislative
immunity, and ignores the fact that it is far easier to waive
common-law immunity than it is to waive constitutional immunity. My
arguments concerning these issues appears in the earlier blog post. 
 
The prosecutor is at fault for not raising the waiver issue, but the
appellate court did raise issues not raised before, including one where
it disagreed with both parties to the appeal! 
 
Harmonizing Constitutional Provisions 
There is one part of the appellate opinion that sounds very much like
the Rhode Island legislative immunity opinion (see <a href="http://www.cityethics.org/node/792" target="”_blank”">my blog post</a> on it),
only in a different context. Both opinions seek to harmonize parts of
each state's constitution, but they do so in a way that is hardly
self-evident. 
 
On pp. 12-14, the Maryland appellate court cites a 1972 opinion which
"harmonizes" a constitutional provision (Art. III, Sect. 50) that
requires the state legislature to pass a law making it a crime for
state and local officials to accept a bribe given "in order to
influence him in the performance of any of his official duties" with
legislative immunity, which requires that no evidence of a legislative
official's official duties can be presented before any court. The court
held in 1972 that the bribery provision was “a limited mandate
providing for punishment of State legislators guilty of bribery if
indictment and prosecution therefore can be accompanied without
impinging on the legislative privilege by introducing evidence of
legislative acts.” 
 
This is harmonization in theory only. In practice it is very difficult
to prove that someone accepted a bribe to influence the performance of
official duties without any evidence of such performance of duties. Why
would the drafters of a constitution choose to tie prosecutors' hands
behind their back? Why would they have bothered to include such a
provision at all, if it intended what the appellate court believes they intended? These practical questions seem beyond the
consideration of the highly theoretical Maryland court of appeals. 
 
Harmonizing a Statute and a Constitutional Provision 
What's so fascinating about the appellate opinion in the Holton case
is that it has the audacity to go a step beyond this questionable constitutional harmonization. On pp.
42ff, it considers <a href="http://law.justia.com/maryland/codes/gcj/5-501.html" target="”_blank”">a statute
that gives local legislators
immunity</a>, at least under some circumstances (the constitution gives
it only to state legislators). Although the title of
the provision is "Action for defamation against local government
official," the court says this title is not controlling, despite the
fact that both parties argued that the title is controlling and that
the statute is not applicable to the Holton case (the court raised the issue, not the parties). 
 
The court concludes, "our reading of [the statute], in
our view, creates no conflict with Article III, Section 50 of the
Maryland Constitution because, if construed consistently with the State
legislative privilege, it would only provide immunity from prosecution
based on their legislative conduct, which also renders inadmissible
evidence of such conduct to prove the criminal offense." It says that
this conclusion is consistent with the constitutional harmonization
argument. 
 
But isn't there a difference between a constitutional provision and a
statute? If the constitution says that bribery laws must apply to local
officials and there is no constitutional provision that says otherwise,
how could the legislature then except local officials from these laws
to the extent evidence is required of one of the two elements of the
crime? This makes no sense, and places into question the rest of the
court's opinion, just as the trial court's talk of a "unified theory"
placed into question its opinion (and the appellate court itself
ignored or threw out several of the trial court's approaches and
conclusions, even as it affirmed the trial court's opinion). 
 
Separation of Powers and Interference with Legislative Power 
One good thing about the appellate opinion is that, in one of the
questions the court itself raised, it rejects the
separation of powers argument for legislative immunity where the state
enforces state criminal laws relating to local officials (an argument
other courts have taken from the California <a href="http://scholar.google.com/scholar_case?case=16212931883281784701&hl=en&…; target="”_blank”">D'Amato
opinion</a>). However, the appellate court does raise an argument that
would, if accepted elsewhere, undermine state enforcement of ethics
laws relating to local officials, where evidence of legislative
activity is required. 
 
The argument is that “[w]hen the Legislature
confers legislative power on a municipal body, a judicial or executive
body may not interfere with that legislative power, except as the
Legislature authorizes.” And since the legislature has not expressly
stated that common-law legislative immunity does not apply, then it
applies in this situation, and a state prosecutor must respect it. 
 
A practical way to deal with this questionable, convuluted argument is to have any state ethics law
applicable to local officials expressly state that legislative immunity
does not apply. The other way, of course, is for local officials that
participate in any legislative activity expressly waive their
legislative immunity in a government ethics context, whether state,
local, or regional. 
 
There is dictum in the appellate opinion (p. 40) that the separation of
powers doctrine does apply in the local context, where there are
"co-equal" legislative and executive branches, but the opinion says
nothing about the common council-manager form of government, where the
executive is selected by the legislative body. Nor does it say anything
about an ethics commission formed by the local legislative body and
either made part of the legislative branch or made independent of both
branches, with members not selected by officials from either branch. 
 
Idealism vs. Reality 
The court's final words show its members' strong idealistic prejudice
toward legislators and the voting booth, and a complete lack of
interest
in or understanding of corruption laws relating to them:
<ul>
Local legislators constitute the most direct form of representative
democracy. They are the closest to the People and they often set the
policies that most directly affect the health, safety and quality of
life of the people residing in their communities. They must enjoy the
same ability to speak and act in their legislative capacities, without
fear of retribution, either criminally or civilly, because of what they
say or how they vote. They may be called upon to answer for their
legislative conduct to the citizens who elected them, which is what
democracy is all about, but they may not be compelled to defend their
legislative conduct to a prosecutor, to a grand jury or to a court.
</ul>
This is a nice statement of faith in our democratic system. But how the
hell are citizens to know if their legislators have accepted bribes or
improperly handled conflicts of interest if no evidence can be
presented of their legislators' improper participation in legislative
activities to further their personal interests instead of the public
interest? 
 
Another way of putting this is, is it truly the will of local
legislators, and the preference of the appellate court, that local
legislators be tried solely via partisan accusations and media
coverage, rather than through the responsible process of a criminal or
ethics
proceeding? I ask this question because, according to the appellate
opinion, the accusations and denials that fill our media coverage would
be
the only way citizens could possibly obtain information about what
their local legislators might have done in violation of bribery and conflict of interest laws, so that these legislators would be answerable for their
conduct. 
 
The Need for Legislative Integrity and Independence 
Besides sticking their heads in the sand of constitutional and
democratic doctrine, the Maryland judges, trial and appellate, show no
recognition that the "need for legislative integrity and independence"
(p. 51 of <a href="http://mdcourts.gov/opinions/cosa/2010/861s09.pdf" target="”_blank”">appellate
opinion</a>, and see p. 15 of the <a href="http://www.baltocts.state.md.us/highlighted_trials/Judge%27s%20Memorand…; target="”_blank”">trial
court opinion</a>),
which they see as central to legislative immunity, is also central to
government ethics laws. The goals of government
ethics and legislative immunity are essentially the same, and yet the
judges
play one off against the other. Even when the state constitution
focuses on bribery, the judges are incapable of recognizing that the
goals of these constitutional provisions are already harmonized, and
that it is this harmonization of goals, not a judicial approach that
harmonizes on the basis of theory, which should be embraced. 
 
Gift and Campaign Finance Rules, and Advisory Opinions 
As harmful as these decisions are to enforcement of important corruption and ethics laws, they do underline the importance of some ethics laws, such as gift and campaign finance rules, where there is no need to prove a quid pro quo or conflict. Since these rules are not subject to legislative immunity defenses, local and state ethics codes must be drafted and improved in order to make these rules effective. 
 
These decisions, and other recent legislative immunity decisions, also lead
us to focus our attention on an aspect of government
ethics programs that is more important than enforcement — the advisory opinion. If local officials effectively insist on
immunity from government ethics enforcement, then the advisory opinion
becomes central to making them accountable. If they act and do not seek
an advisory opinion in advance of their acting, then this fact alone,
even though it is an omission, becomes the predominant way by which the
public can judge their officials. Everything else — all those
accusations and denials — is open to question. 
 
Fortunately, there is no constitutional immunity from seeking such
advice.Strict legislative immunity should mean a strict requirement to
seek neutral advice from an independent ethics officer or ethics
commission, not from a government appointee such as a city attorney,
before acting where there is the slightest possibility of an appearance
of impropriety. If an official acts without seeking advice, or against
the advice received, and refuses to waive his or her legislative
immunity, then there should be a presumption of ethical misconduct, and
any denial outside of an ethics proceeding should be ignored. 
 
As I said at the beginning of this long blog post, there is a cost to
placing independence above ethics, of treating independence as an
absolute value. Those who insist on their independence, both of ethics
enforcement and ethics advice, must be willing to accept the public's
anger and disbelief of any defense they raise outside of the formal advice and enforcement
process that is fully available to them, but which they reject. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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