The New, Leaky Utah Legislative Ethics Complaint Process
In <a href="http://www.cityethics.org/content/there-meaningful-difference-between-m…; target="”_blank”">a
recent blog post</a>, I wrote about a federal third circuit decision
that a law prohibiting an ethics complainant from announcing the filing
of the complaint violates the complainant's first amendment rights.
This decision contradicts a second circuit decision that upheld a law
prohibiting the announcing of the filing of a judicial ethics complaint.<br>
<br>
In this light, the brand new <a href="http://le.utah.gov/%7E2010/bills/sbillenr/sjr003.pdf" target="”_blank”">Utah
legislative ethics complaint procedures statute</a> flies in the face
not only of the first amendment, but also of reason. Here's the
relevant section:<ul>
JR6-3-102. Privacy of Ethics Complaints -- Contempt -- Enforcement of
Finding of Contempt -- Dismissal.<br>
(1) (a) Except as provided in Subsection (1)(b) or (c), a person,
including the complainants, the respondent, commission members, a
committee chair or vice chair, or staff to the commission or a
committee, may not disclose the existence of a complaint, a response,
nor any information concerning any alleged violation that is the
subject of a complaint. ... <br>
(2) A person who violates the provisions of Subsection (1)(a) is in
contempt of the Legislature and proceedings may be initiated to enforce
the finding of contempt using the procedures provided in JR6-2-304 and
Section 36-14-5.<br>
(3) If the existence of an ethics complaint is publicly disclosed
during the period that the Independent Legislative Ethics Commission is
reviewing the complaint, the complaint shall be summarily dismissed
without prejudice.</ul>
Not only does this provision prevent a complainant from saying she
filed the complaint, which reasonably prevents the political use of an ethics
filing, but it also prevents a respondent from publicly defending
himself. And it takes this a step further into the world of absurdity.
A respondent, which means a state legislator, can have the information leaked
to the press in order to have the complaint automatically dismissed. Since the newspaper cannot be forced to disclose its source, no one
could be found in contempt. What a nice way to prevent ethics complaint against legislators from ever going anywhere!<br>
<br>
It's amazing that three former judges and a former lieutenant governor
actually signed on as members of the new legislative ethics commission,
knowing that they could only hand recommendations on to the legislature
itself, and knowing how easy it could be to prevent investigations from
going forward.<br>
<br>
It's not as if they don't recognize the problem. Commission member John
Memmott was <a href="http://www.examiner.com/x-37114-Salt-Lake-City-Political-Buzz-Examiner%…; target="”_blank”">quoted
a week ago by the Salt Lake City <i>Political Buzz Examiner</i></a> as calling
this "a very easy out."<br>
<br>
The same article paraphrases the General Counsel for the Legislature as saying that "the media would recognize the
motivation behind the leak so it wouldn't happen. If the person behind
the leak is the person being investigated, the embarrassment is
supposed to be enough to stop them from leaking any information to save
them. [General Counsel] added if there was a leak, there would be an
additional complaint filed about the leak, and a possible charge of
contempt of the Legislature in court."<br>
<br>
This assumes that a state legislator would actually leak the
information himself, and that the newspaper would disclose the source
of the leak. Those are pretty big assumptions.<br>
<br>
By the way, a <a href="http://www.utahnsforethicalgovernment.org/" target="”_blank”">citizens
initiative for an independent ethics commission</a> is still alive.<br>
<br>
In the meantime, the legislative ethics commission has a big budget of $50,000 a year, not enough to do much damage, or even hire staff. Utah state legislators seem safe from the commission, but not from public accusations or the blogosphere.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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