Some Questionable Missouri Ethics Reform Provisions
According to <a href="http://www.newstribune.com/articles/2010/07/24/politics_and_elections/n…; target="”_blank”">an
article
in the <i>News-Tribune</i></a>, the governor of Missouri recently
signed <a href="http://www.senate.mo.gov/10info/pdf-bill/tat/SB844.pdf" target="”_blank”">an
ethics
bill</a> (SB 844) that made many changes in the state's ethics
and campaign finance programs, and failed to make others, such as a
campaign contribution limit, which the legislature had eliminated in
2006. Missouri's ethics commission has jurisdiction over local government officials.<br>
<br>
I'd like to focus on three interesting and questionable changes.<br>
<br>
<b>EC Investigations on Its Own Initiative</b><br>
The first is very
positive, with one major exception. §105.959.2 (pp. 22-23) allows
the state EC to investigate a matter on its own, without anyone filing
a
complaint. This is an extremely important provision, because it allows
an investigation of information provided anonymously or confidentially
by people who are afraid of retaliation or simply unwilling to file a
public action. It also allows an investigation based on news media
reports, where no one has an interest in filing a complaint.<br>
<br>
However, this excellent addition is seriously undermined by the
requirement of unanimity. The Missouri EC is bipartisan, not
nonpartisan. Its members are nominated by political party committees (a
ridiculous idea, although the norm in many local governments)
and selected by the governor. One individual can block an
independent investigation into the conduct of a party colleague. (See
the equivalent City Ethics Model Code provision, <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC81…; target="”_blank”">§213.3</a>,
which allows for a majority vote to look further into a
matter.)<br>
<br>
With one hand, this provision gives the EC an important power and, with
the other hand, it undermines the public trust by allowing one partisan
individual to block an investigation.<br>
<br>
<b>Penalties to Preserve Confidentiality</b><br>
§105.959.7 (p. 24) makes EC investigations confidential, which is
fine. But it also creates a new, excessive penalty to try to preserve
this confidentiality:<ul>
Revealing any such confidential investigation information shall be
cause for removal or dismissal of the executive director or a
commission member or employee.</ul>
First of all, how can anyone do an investigation without informing
those it interviews? Almost every investigatory question provides
information about the investigation. One question, not to mention
stating the purpose for the interview, and an
employee could lose her job.<br>
<br>
And what about revelations to the news media? There was a case
involving the executive director of the Philadelphia EC, which I wrote
about in <a href="http://www.cityethics.org/node/756" target="”_blank”">a blog post last
year</a>. The director was asked by a reporter whether the EC had
decided on a particular penalty for an official, and the director
denied it. Then
he was asked about an investigation of the matter. A "no comment" alone
to the question would likely be taken as a confirmation of the
investigation. So he said "no comment" on the record and confirmed the
investigation off the record, telling the
reporter that they were in the midst of settlement negotiations. His
goal was to keep the investigation from being made public in the midst
of negotiations. But to do this he had to violate the city's
confidentiality provision.<br>
<br>
Philadelphia's executive director was given a $500 fine for his snap
judgment, which I think was excessive. In Missouri, the executive
director could now be dismissed. This seems like a guaranteed way to limit investigations and keep strong staff members in line.<br>
<br>
<b>De Novo Review of EC Decisions</b><br>
§105.961.6 (p. 28) allows for de novo judicial review of any ethics
matter in which a violation is found. Appeal is one thing, but a de
novo reconsideration by a court simply gives an official an opportunity
to substantially delay the matter and hope for a better, or more timely
resolution. It
also substantially reduces the chance of a settlement and greatly
increases government expenses.<br>
<br>
The problem here, as in too many jurisdictions, is that Missouri's ethics laws are
criminal laws. With criminal enforcement, due process requirements are
much higher than with civil ethics enforcement. Ethics enforcement is
supposed to be handled relatively quickly and inexpensively (assuming
sufficient
resources, which unfortunately is too often not the case).<br>
<br>
<b>Obstructing an Ethics Investigation</b><br>
Finally, here's a relatively unusual new provision, §575.021 (pp.
68-69), creating the crime of obstructing an ethics investigation:<ul>
1. A person commits the crime of obstruction of an ethics investigation
if such person, for the purpose of obstructing or preventing an
ethics investigation, knowingly commits any of the following acts:<br>
(1) Confers or agrees to confer anything of pecuniary benefit to any
person in direct exchange for that person's concealing or withholding
any information concerning any violation of sections 105.450 to 105.496
and chapter 130;<br>
(2) Accepting or agreeing to accept anything of pecuniary benefit in
direct exchange for concealing or withholding any information
concerning any violation of sections 105.450 to 105.496 or chapter 130;<br>
(3) Utters or submits a false statement that the person does not
believe to be true to any member or employee of the Missouri ethics
commission or to any official investigating any violation of sections
105.450 to 105.496 or chapter 130; or<br>
(4) Submits any writing or other documentation that is inaccurate and
that the person does not believe to be true to any member or employee
of the Missouri ethics commission or to any official investigating any
violation of sections 105.450 to 105.496 or chapter 130.<br>
<br>
2. It is a defense to a prosecution under subdivisions (3) and (4) of
subsection 1 of this section that the person retracted the false
statement, writing, or other documentation, but this defense shall not
apply if the retraction was made after:<br>
(1) The falsity of the statement, writing, or other documentation was
exposed; or<br>
(2) Any member or employee of the Missouri ethics commission or any
official investigating any violation of sections 105.450 to 105.496 or
chapter 130 took substantial action in reliance on the statement,
writing, or other documentation.<br>
<br>
3. The defendant shall have the burden of injecting the issue of
retraction under this section.<br>
<br>
4. Obstruction of an ethics investigation under this section is a class
A misdemeanor.</ul>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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