Three Preventative Approaches to the Legislative Immunity Defense
I've written many blog posts about various cases where the legislative
immunity defense has been made, but I haven't pulled together in one
post the
three alternative, preventative approaches local governments can take
to deal with the issue of legislative
immunity before anyone raises it as a defense. It is far better, and
far less expensive, to prevent local
legislators from raising the defense of legislative immunity than it is
to litigate this complex issue. It is also damaging to the public trust
when a local legislator insists that he does not have to appear before
an ethics commission, and that the commission cannot consider evidence even of the legislator's
public votes.<br>
<br>
One alternative is to seek to have all members of an ethics commission
appointed (although, preferably, not selected) by the local legislative
body,
and to have the ethics commission expressly made a part of the
legislative
branch, with everything else kept the same. Doing this makes the ethics
commission not "any other place" (language from the Speech or Debate Clause, which gives rise to the legislative immunity defense), but rather the same place.<br>
<br>
There is no executive
immunity with respect to such an ethics commission, but it is possible
that, in a strong mayor
form of government, executive branch officials could try to use a
separation of powers argument to remove themselves from the
ethics commission’s jurisdiction. If this issue is raised, one
possibility is
to have independent community groups, together or separately, select
three names for each seat, to have the mayor choose one of these three,
and to have the legislative body approve or disapprove the choice. (See
<a href="http://www.cityethics.org/node/770" target="”_blank”">a blog post</a> on having
EC members selected by community groups.)<br>
<br>
A second alternative is to have all officials who participate in
legislative activity, including school board members, planning board
members, the mayor, and others, include with their oath
of office a statement that they are fully subject to the jurisdiction
of the relevant ethics commission and will not raise the defense of
legislative immunity. This would constitute a waiver of legislative
immunity. Of course, individuals could refuse to do this,
but it would make them look suspect in the eyes of the public.<br>
<br>
If there were concerns about the legality of this, considering that
legislative immunity has been held to protect the public rather than
the legislator, it would be possible to hold a referendum on the issue,
so that it is the public itself that requires local legislators to waive legislative immunity so that they are
subject to the full jurisdiction of the ethics commission.<br>
<br>
A third alternative, if the state constitution's Speech or
Debate Clause has been held to apply to local legislators, is to amend the clause with language that expressly excepts local ethics
commissions from being considered as "any other place," like this:<ul>
For any speech or debate in either house, no member shall be questioned
in any other place, except that local legislative officials may be
questioned in their local ethics commission.</ul>
In any event, there
is still common-law legislative immunity, which can be nullified, in
the local ethics commission context, in the state constitution, in a
state statute, in a local ordinance, or in a local charter.<br>
<br>
It is difficult for anyone to raise the touchy issue of legislative
immunity before it becomes a problem, but this is the responsible thing
to do. Keeping your head in the sand, as the government ethics
community has done the last few years, is a short-term solution, and
not a very responsible one. It could be argued that the less the issue
is talked about, the less likely it is local legislators will raise the
defense. But considering that it would take a lawyer no more
an hour to research and understand the issue as applied in the
government ethics context, it is likely that more and more of them will
learn about the defense. In fact, I see it being raised more and more.
Since government ethics and legislative immunity have exactly the same
goal (see <a href="http://www.cityethics.org/node/583" target="”_blank”">my blog post on
this</a>), and since citizens want their local legislators to be subject
to their ethics code, it is time to nip this problem in the bud.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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