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The Problems with Requiring a Sworn Ethics Complaint Based on Personally Known Facts
Wednesday, August 15th, 2012
Robert Wechsler
Is it important that an ethics complaint be based on information
that is known personally? Some ethics codes require this. But the
fact is that many ethics violations are done secretly. It can take
some serious, professional investigation to obtain the facts and
relevant documents. This is why investigations by journalists are so
valuable. What they uncover is often used by citizens, good
government organizations, and others as the basis for an ethics
complaint. And sometimes a government employee who has suspected
misconduct has her suspicions confirmed by an investigative article,
and uses a combination of personal knowledge and the investigation
to prepare a complaint.
This issue has been raised in Louisville where, according to an article this week in the Courier-Journal, the chair of Kentucky Common Cause filed an ethics complaint against a council member based on a Courier-Journal investigative series. The council member's attorney attacked the complaint because it was not based on facts personally known to the complainant.
Newspapers Investigate, But Do Not File Complaints
There are actually three issues here. One is whether a complainant needs to have personal knowledge of a case, which either means that the complainant must have been involved, as an employee for example, or must have herself done an independent investigation. In fact, the council member's attorney said, "it is The Courier who is actually prosecuting the complaint, with Beliles and Common Cause being nothing more than a conduit or vehicle for the claims of The Courier-Journal."
Newspapers, however, do not generally file ethics complaints. Like inspectors general, their role is to investigate, not to enforce. The one area of government ethics where newspapers do sometimes get involved as complainants is transparency and open meetings. But here newspapers have an interest others do not have. They cannot effectively operate if meetings are closed and they cannot get access to public documents. Conflicts of interest, on the other hand, are everyone's concern.
For a newspaper investigation to turn into an enforcement proceeding, someone who did not do the investigation has to file the complaint. People should not be prohibited from doing this.
Entities Filing Ethics Complaints
The second issue involves individual vs. entity origination of a complaint. Most jurisdictions require that an individual file a sworn complaint. This has to be done by someone acting for the entity, but in his own name. In this case, that individual was the organization's chair. It could have been its director or any other representative. Even if individuals within the organization had done the investigation, the individual under whose name the complaint was filed would likely not have personal knowledge of all, or even any, of the facts. And there is no reason he should. He is vouching not for his personal knowledge, but for the organization.
Swearing to Facts in an Ethics Complaint
The third and most important issue is, how can someone swear to a complaint containing facts of which he has no personal knowledge, facts, for example, that he read in a newspaper? This appears to make the Common Cause complaint questionable. But in fact it makes the requirement of a sworn complaint questionable. Requiring someone to swear to facts in a complaint appears to require personal knowledge of those facts and, therefore, that the individual has done the entire investigation himself.
Who Should Do the Investigation?
This is preposterous for two reasons. One, an investigation is supposed to be made by the ethics commission, not by the complainant. It is enough that the complainant has reason to believe that an ethics violation has occurred and has done his civic duty in bringing to the ethics commission whatever information he has or has encountered. It is up to the ethics commission to determine the validity of the facts and to find more information and documentation to support the complaint. Requiring an individual to have personal knowledge of a violation is to require the individual to do the ethics commission's work.
And this appears to be what the Louisville ethics code requires. This is, fortunately, very unusual. The great majority of ethics codes put the investigative burden on the ethics commission, its staff, or an inspector general.
What is far more common is to not require the filing of a complaint. Not only should an individual not be required to swear to facts proving a violation, but he should not even be required to file a complaint. This is why it is important to have a hot line so that individuals can share with the EC whatever knowledge they may have, without worrying about prosecution if they have it wrong or retaliation if they have it right.
In this instance, the EC should have filed its own complaint or initated its own investigation based on the investigative report, just as was done on the criminal side, according to the Courier-Journal article. But an individual or entity should still be permitted to file a complaint based on a private investigation if the EC does not act itself.
The Value of Good Government Organizations
The second reason a requirement of swearing to the facts in a complaint is preposterous is that good government organizations and other civic groups are in a much better position than anyone outside a government organization to file an ethics complaint. They pay attention to what is going on, understand and care about what is happening, and can act with more courage, expertise, and respect than an individual. And yet such an organization cannot itself swear to facts in a complaint, most such organizations are not set up to do investigations, nor can they afford to hire someone to do them.
How to Scare People Away from Helping the Enforcement Process
So the problem here is not that the Common Cause chair did not have personal knowledge, but instead depended on the newspaper's investigative reporting. The problem is that the Louisville ethics code requires a sworn complaint from an individual and expects that individual to do the investigation. The Louisville council appears to have done everything it could to scare away those trying to help the ethics enforcement process. The code even requires the complaint form to have the following warning:
A Need for Reform
In 2010, the council changed the language and the penalties relating to the filing of complaints, requiring more courage to file a complaint. But the council did not give the EC the right to initiate its own investigation or complaint, or even do an investigation when it has received a complaint. It should do so, set up a hotline, and strike the requirement to swear to the facts in a complaint. The EC can take care of frivolous complaints, and can determine if investigative reporting is a sufficient basis for its own investigation, without putting the burden on the complainant.
The council should use the occasion of this complaint not to let the council member off the hook, but to change the complaint process to make it easier for individuals and entities to file complaints and share information with the ethics commission so that it can do the investigating itself.
Robert Wechsler
Director of Research-Retired, City Ethics
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This issue has been raised in Louisville where, according to an article this week in the Courier-Journal, the chair of Kentucky Common Cause filed an ethics complaint against a council member based on a Courier-Journal investigative series. The council member's attorney attacked the complaint because it was not based on facts personally known to the complainant.
Newspapers Investigate, But Do Not File Complaints
There are actually three issues here. One is whether a complainant needs to have personal knowledge of a case, which either means that the complainant must have been involved, as an employee for example, or must have herself done an independent investigation. In fact, the council member's attorney said, "it is The Courier who is actually prosecuting the complaint, with Beliles and Common Cause being nothing more than a conduit or vehicle for the claims of The Courier-Journal."
Newspapers, however, do not generally file ethics complaints. Like inspectors general, their role is to investigate, not to enforce. The one area of government ethics where newspapers do sometimes get involved as complainants is transparency and open meetings. But here newspapers have an interest others do not have. They cannot effectively operate if meetings are closed and they cannot get access to public documents. Conflicts of interest, on the other hand, are everyone's concern.
For a newspaper investigation to turn into an enforcement proceeding, someone who did not do the investigation has to file the complaint. People should not be prohibited from doing this.
Entities Filing Ethics Complaints
The second issue involves individual vs. entity origination of a complaint. Most jurisdictions require that an individual file a sworn complaint. This has to be done by someone acting for the entity, but in his own name. In this case, that individual was the organization's chair. It could have been its director or any other representative. Even if individuals within the organization had done the investigation, the individual under whose name the complaint was filed would likely not have personal knowledge of all, or even any, of the facts. And there is no reason he should. He is vouching not for his personal knowledge, but for the organization.
Swearing to Facts in an Ethics Complaint
The third and most important issue is, how can someone swear to a complaint containing facts of which he has no personal knowledge, facts, for example, that he read in a newspaper? This appears to make the Common Cause complaint questionable. But in fact it makes the requirement of a sworn complaint questionable. Requiring someone to swear to facts in a complaint appears to require personal knowledge of those facts and, therefore, that the individual has done the entire investigation himself.
Who Should Do the Investigation?
This is preposterous for two reasons. One, an investigation is supposed to be made by the ethics commission, not by the complainant. It is enough that the complainant has reason to believe that an ethics violation has occurred and has done his civic duty in bringing to the ethics commission whatever information he has or has encountered. It is up to the ethics commission to determine the validity of the facts and to find more information and documentation to support the complaint. Requiring an individual to have personal knowledge of a violation is to require the individual to do the ethics commission's work.
And this appears to be what the Louisville ethics code requires. This is, fortunately, very unusual. The great majority of ethics codes put the investigative burden on the ethics commission, its staff, or an inspector general.
What is far more common is to not require the filing of a complaint. Not only should an individual not be required to swear to facts proving a violation, but he should not even be required to file a complaint. This is why it is important to have a hot line so that individuals can share with the EC whatever knowledge they may have, without worrying about prosecution if they have it wrong or retaliation if they have it right.
In this instance, the EC should have filed its own complaint or initated its own investigation based on the investigative report, just as was done on the criminal side, according to the Courier-Journal article. But an individual or entity should still be permitted to file a complaint based on a private investigation if the EC does not act itself.
The Value of Good Government Organizations
The second reason a requirement of swearing to the facts in a complaint is preposterous is that good government organizations and other civic groups are in a much better position than anyone outside a government organization to file an ethics complaint. They pay attention to what is going on, understand and care about what is happening, and can act with more courage, expertise, and respect than an individual. And yet such an organization cannot itself swear to facts in a complaint, most such organizations are not set up to do investigations, nor can they afford to hire someone to do them.
How to Scare People Away from Helping the Enforcement Process
So the problem here is not that the Common Cause chair did not have personal knowledge, but instead depended on the newspaper's investigative reporting. The problem is that the Louisville ethics code requires a sworn complaint from an individual and expects that individual to do the investigation. The Louisville council appears to have done everything it could to scare away those trying to help the ethics enforcement process. The code even requires the complaint form to have the following warning:
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.Yes, one single false statement could put the complainant in prison for a year. How could any sane individual file a complaint even upon personal knowledge after reading this? Only someone with an organization standing behind him could consider this, and even then he is taking a risk, because his name is on the complaint. The Common Cause chair should not be attacked for filing the complaint, but should be considered a hero for his courage. But no one should have to be such a hero simply to bring a matter before an ethics commission.
A Need for Reform
In 2010, the council changed the language and the penalties relating to the filing of complaints, requiring more courage to file a complaint. But the council did not give the EC the right to initiate its own investigation or complaint, or even do an investigation when it has received a complaint. It should do so, set up a hotline, and strike the requirement to swear to the facts in a complaint. The EC can take care of frivolous complaints, and can determine if investigative reporting is a sufficient basis for its own investigation, without putting the burden on the complainant.
The council should use the occasion of this complaint not to let the council member off the hook, but to change the complaint process to make it easier for individuals and entities to file complaints and share information with the ethics commission so that it can do the investigating itself.
Robert Wechsler
Director of Research-Retired, City Ethics
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