No Enforcement Against the Complicit in a California Case
Court decisions, especially when combined with criminal enforcement
of ethics violations, can be very harmful to local government ethics. The court in a Monterey County case involving a serious <a href="http://www.cityethics.org/content/californias-contract-oriented-conflic…; target="”_blank”">§1090</a>
conflict of interest matter that officials were not only aware of,
but appear to have helped create, has used two recent California
court decisions to limit prosecution to just one official. Recently,
the official's last-ditch effort to dismiss the charges on the basis of an
entrapment argument failed, according to <a href="http://www.montereyherald.com/localnews/ci_24303177/entrapment-not-defe…; target="”_blank”">an
article in yesterday's Monterey <i>Herald</i></a>. In fact, a judge barred the official from
calling anyone, including his colleagues, to testify in a
preliminary hearing on the entrapment defense.<br>
<br>
<b>Complicity</b><br>
It is very important to government ethics enforcement that
officials who are complicit in an ethics violation are also
considered to have violated the ethics code. A complicity
provision can prevent a great deal of ethics violations. It also
allows an ethics commission to add respondents as it learns more
about a conflict situation via investigation.<br>
<br>
However, when ethics enforcement is done through the criminal
justice system, intent must be proven. And, according to the
decision in <a href="http://scholar.google.com/scholar_case?case=16212931883281784701&hl=en&…; target="”_blank”"><i>D'Amato</i>
v. <i>Superior Court</i></a>, 167 Cal. App. 4th 861 (2008), because intent to aid and abet would
have to be shown, and intent cannot be shown due to separation
of powers (as with legislative immunity), it cannot be proved that an official was complicit in
a violation of §1090.<br>
<br>
<a href="http://www.montereycountyweekly.com/opinion/local_spin/article_bb1cf766…; target="”_blank”">An
article in the Monterey <i>Weekly</i></a> quotes a district attorney
as saying, “It’s an unusual opinion that finds normal principles for criminal
liability for aiding and abetting don’t apply to Code 1090
conflict of interest. The court thought it would give
prosecutors too much control over government by allowing them to
choose anyone in the chain of decision making.”
<br>
<br>
Fortunately, now that the state's Fair Political Practices Commission
will be able to enforce §1090 civilly or administratively, this
should not be a problem in the future, unless the FPPC chooses to let
the criminal justice system deal with some §1090 conflict matters or
unless a court applies the same principle in a civil or
administrative context.<br>
<br>
<b>Ethics Advice</b><br>
But there is still the problem of ethics advice. The official
contends that other officials asked him to work on the project and assured him there
was no conflict of interest. There is evidence that the legality of his
participation was discussed in meetings of officials, but
California is unusual in having a judicial decision that says
that an official cannot depend on ethics advice (at least not from the FPPC) (<a href="http://scocal.stanford.edu/opinion/people-v-chacon-33704" target="”_blank”"><i>The
People</i> v. <i>Chacon</i></a>, S125236 (February 8, 2007)).<br>
<br>
This means that, in California, an official who is asked to
handle a matter and told he has no conflict may not only be
prosecuted for the conflict, but may be solely prosecuted for
it, even if those officials who asked and assured him did it
purposely in order to protect themselves. I'm not saying that
happened here – it's not the facts of this particular case that
matter. I'm just saying that a combination of one reasonable
rule (officials may only depend on ethics advice from an ethics
commission or staff member) and one unreasonable rule in a criminal context (the
separation of powers doctrine precludes investigations of
complicity with respect to ethics violations) can lead to unfair
results and can create serious obstacles to an ethics program's
enforcement as well as prevention of ethics violations.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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