Rules Disallowing Complaints Before Elections

Many jurisdictions have a rule that disallows the filing of an ethics complaint against an elected official within so many days before an election. The purpose of such a rule is to prevent the abuse of the ethics process for political purposes. But is this the best solution to this problem?

This question arose with respect to a complaint filed in Alabama against a county sheriff. According to an article in yesterday's Times-Journal, the Alabama Ethics Commission refused to accept a complaint filed 42 days before an election by the county commission president (the time limit is 45 days). What makes the refusal to accept the complaint especially problematic is that the state ethics law (§36-25-17; p. 22) requires every agency head to report violations to the EC within ten days after it comes to the agency head's attention.

The fact that this matter appeared in the local newspaper shows that this rule did little to protect the sheriff's reputation. In fact, the best way to have protected his reputation would have been for the EC to have had the option to quickly dismiss the complaint either because it did not state a possible violation of the code or because it was frivolous (assuming, of course, this was the case). If it could not be dismissed on either basis, the EC could have chosen (or be required) to delay its investigation until after the election, so that there was no interference with it. It could also be required to send out a press release clearly stating that the filing of a complaint does not mean there was any wrongdoing, and reminding the press and the public that most ethics complaints involve oversights, misunderstandings, and unprofessional handling of conflicts rather than wrongdoing.

Merely rejecting a complaint based on the date it was filed does nothing to remove the doubt of the candidate's ethics violation. It does, however, send a message that the ethics process is not to be used for political purposes, at least to the extent of affecting elections. But this message can be sent in other ways.

One way would be to require the automatic dismissal of any complaint filed within 45 days of an election, whenever the fact of the filing is disclosed. This would give the filer a choice:  keep the filing confidential until after the election, so that it would not affect the election, or make it public and have it automatically dismissed.

Robert Wechsler
Director of Research-Retired, City Ethics

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