Serious Penalties — Criminal vs. Civil

I'm going to keep showing how wrong the criminal enforcement of ethics laws is until there is at least some sign of movement away from it. This time I will do it by looking at two recent proceedings in which serious penalties are involved, one criminal, the other civil. The criminal penalties are about punishment, the civil penalties about strengthening the ethics program and sending important messages to other officials and employees.

Eye-for-an-Eye Punishment
The criminal case involves the mayor of Pico Rivera, a city in Los Angeles County. According to an article in the Whittier Daily News, he has been convicted of voting on a street light and a street improvement project near his fast food restaurant Der Wienerschnitzel. Both offenses are misdemeanors. For this, the D.A. is asking for the mayor to be sentenced to 90 days in the county jail and to have him banned from running for elective office for four years.

The assistant D.A. said, "I think some custody time is appropriate based on the fact that it wasn't one act. It was two acts on which he was convicted of."

If the judge won't put the mayor in jail, but instead requires community service, the D.A. doesn't want the service to be done in Pico Rivera. That seems nothing but vindictive.

There's no doubt that the mayor should have withdrawn from both matters, but putting him in prison and keeping him out of office for four years makes no sense. It could even be argued that the D.A.'s political grandstanding is at least as much about personal interest and at least as damaging to public trust as what the mayor did.

Eye-for-an-eye and tooth-for-a-tooth punishment has no place in government ethics. Nor is it good to allow people with little interest in the entire ethics program to have a role in determining penalties.

Strengthening the Ethics Program
There are occasions where ethics violations do deserve harsh penalties, although not as harsh as this. An example just happened to appear in my e-mail inbox today. The Massachusetts Ethics Commission reached a disposition agreeement (attached; see below) with a local board of health sanitary inspector, in which the inspector agreed to a civil penalty of $35,000, which must be a sizeable percentage of his annual salary.

What did he do to deserve this? On at least 50 occasions, he performed constable services on behalf of private property owners and/or managers for which he received compensation, and on at least 32 occasions, he performed inspections on properties owned and/or managed by private parties for whom he performed constable services.

It is not just that the constable services and inspections violated the ethics code, but that he was expressly told by the EC's enforcement division, in 1998, that both of these were violations and that he should no longer do them.

In other words, violating an ethics code is one thing, violating an ethics warning letter is another. Not only can the official not say he did not know the law, but if he does not understand how it applies in any particular situation, he certainly knows who to ask.

This is not eye-for-an-eye justice. This is the way an ethics commission makes it clear that it means business when it sends out a warning letter. What it does is strengthen the warning letter process so that enforcement proceedings will be less frequent. It is a concrete way to show officials and employees that education and advice are more important to the ethics program than enforcement. It is a way to strengthen the ethics program, not a way to punish.

Robert Wechsler
Director of Research-Retired, City Ethics

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