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No Enforcement Against the Complicit in a California Case
Tuesday, October 15th, 2013
Robert Wechsler
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 §1090
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 an
article in yesterday's Monterey Herald. In fact, a judge barred the official from
calling anyone, including his colleagues, to testify in a
preliminary hearing on the entrapment defense.
Complicity
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.
However, when ethics enforcement is done through the criminal justice system, intent must be proven. And, according to the decision in D'Amato v. Superior Court, 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.
An article in the Monterey Weekly 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.”
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.
Ethics Advice
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) (The People v. Chacon, S125236 (February 8, 2007)).
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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Complicity
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.
However, when ethics enforcement is done through the criminal justice system, intent must be proven. And, according to the decision in D'Amato v. Superior Court, 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.
An article in the Monterey Weekly 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.”
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.
Ethics Advice
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) (The People v. Chacon, S125236 (February 8, 2007)).
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.
Robert Wechsler
Director of Research-Retired, City Ethics
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