Non-Substantive Considerations for Dismissing Ethics Complaints
Why is it so hard for officials, personally or in drafting ethics codes, to let an ethics commission do its
work, dismissing complaints that lack validity (i.e., that do not state an ethics violation by someone under the ethics program's jurisdiction or for which there is insufficient evidence)? Why, instead, do they create and take advantage of non-substantive considerations for dismissal of complaints in order to take revenge on complainants?<br>
<br>
I ask this question after reading <a href="http://wfpl.org/post/louisville-council-president-jim-king-refutes-ethi…; target="”_blank”">a
Kentucky Center for Investigative Reporting article from yesterday</a>
that shows how the Louisville Metro Council president has, in his
response to a series of ethics complaints filed against him, asked that the complaints be
turned over to the district attorney for possible criminal prosecution of the complainant.<br>
<br>
Sadly, this request is suggested by the ethics code itself, which of
course is the product of the very council that the president
presides over.<br>
<br>
Here is the relevant provision:<blockquote>
§21.06(E) No person shall file a complaint against a Metro
Officer with the Ethics Commission which complaint is false, or made
in bad faith, or with actual malice, or without probable cause. In
the event that such a complaint is filed with the Ethics Commission,
it shall be forwarded to the Commonwealth's Attorney, together with
all electronic and documentary materials related to the complaint,
for action as that official may deem appropriate.</blockquote>
There are two things remarkable about this provision. One is that it
effectively requires an EC not only to dismiss invalid complaints,
but with respect to each dismissal, to make separate determinations
(1) that the complaint is not false (which could be interpreted as
containing any statement that is not wholly true, requiring the EC
to consider all the allegations and make determinations on their accuracy
without, presumably, holding a hearing, since it has decided to
dismiss the complaint; thus, there is no due process for the
complainant); (2) that the complaint was not filed in "bad faith,"
however that can be proven; (3) that the complaint was not filed
with "actual malice," which generally requires the EC to determine
whether the complainant acted with reckless disregard to the truth,
which can include making allegations without sufficiently
investigating them, even though it is the ethics program that is
supposed to do the investigation; and (4), most incredibly, that
there is no probable cause, even when probable cause can only be
determined after an investigation and even though a finding of no
probable cause means, in every other jurisdiction, that a complaint be dismissed, not
turned over to a district attorney for criminal enforcement.<br>
<br>
I have never seen such an outrageous, anti-complainant provision. First, it creates a huge amount of unnecessary work for the EC. Second, it places any potential complainant in jeopardy of prosecution, making it unlikely that any normal person would file an ethics complaint. It is sad that, after reading such an outrageous provision, a council president would have the audacity to expressly ask the EC to fulfill its obligations under it, rather than recognizing it as a provision that should be removed from the ethics code.<br>
<br>
All this is in addition to the following warning on the ethics complaint form:<blockquote>
I understand pursuant to KRS 523.010 et seq, a false statement made under oath and without belief could affect the outcome of any proceeding before the Ethics Commission, and may subject me to penalties including fines of up to $500 or 12 months imprisonment.</blockquote>
It gets worse. The EC apparently did not feel this was enough.
So in its rules and regulations, it added the following provision:<blockquote>
The Commission shall dismiss without hearing any complaints that
appear to be frivolous on their face, not reasonably comprehensible,
filed principally for the purpose of harassment, or which pertain to
a person not within the definition of persons against whom the
Ordinance may be enforced. The Complainant shall be informed in
writing in all cases of the action taken by the Commission on each
complaint.</blockquote>
To falsity, bad faith, actual malice, and lack of probable cause, the
EC added frivolousness, incomprehension, and harassment as ways to prevent complaints being considered, even if they are valid. And all of these additional obstacles to ethics enforcement are vague, giving the EC great leeway in dismissing any complaint it doesn't like.<br>
<br>
No EC should be permitted to determine what is
"frivolous" and what is not. If it's not valid, who cares whether or
not a complainant was acting "frivolously"? And why waste time
determining this? And if the complaint is valid, how could it be
"frivolous" in any meaningful way? Yes, this provision is itself
"frivolous."<br>
<br>
As for "harassment," we're not talking about stalking or improper
physical contact. We're talking about filing an ethics complaint.
Many people who file ethics complaints do it to harass an official.
Without political motives, there would be many fewer ethics
complaints. But if even one allegation is possibly valid, an EC
should look into it enough to know whether there is any validity.
And if it's dismissed, it should be dismissed because there is no
validity, not because there was an intent to harass.<br>
<br>
And as for "reasonable comprehensibility," some people who file
ethics complaints are not very good communicators. If there one
comprehensible allegation, then the complainant should be contacted
and the EC should try to elucidate verbally what the complainant
intended to say. If there is no comprehensible allegation, then the
complaint should be dismissed as not making an allegation of an
ethics violation, but even here, if something seems to relate to a
possible ethics violation, the cover letter should suggest that the
complainant take the complaint to a lawyer or someone else who can
restate the allegations in terms of the ethics code.<br>
<br>
In short, Louisville's ethics program unnecessarily makes it too
hard for complaints to be filed, to be considered, and to be heard, and too easy for the EC to dismiss possibly valid complaints.
The Metro Council needs to remove the obstacles, and let the EC
dismiss just on the grounds that no ethics violation has been
alleged against someone under its jurisdiction, or that there has
been no violation.<br>
<br>
<b>Officials' Duty to Determine Whether There Is a Conflict</b><br>
The council president raises a valuable issue, according to the
article. In his response, he asks the EC for an advisory opinion
regarding whether council members have an “implied duty” under the
ethics code to look into the identities of the parties with an
interest in zoning cases that come before the council. As it is now,
this information is not provided before a vote, and there can be
several votes per meeting involving many parcels and owners.<br>
<br>
There are two ways to deal with this problem. One is for all parties
seeking zoning permits to provide a full list of all property owners
and their spouses, and to either provide the list in advance so that
officials or their aides can look through them, or read the names out at
the time of the vote.<br>
<br>
The other way is to take the council out of approving mass land use
permit requests. Let a zoning board deal with this. Its members and
staff can better focus on possible conflicts. The question should be
asked whether it is necessary, not to mention appropriate, for a
busy council to approve matters it knows nothing about.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---