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.

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.

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 blog post on having EC members selected by community groups.)

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.

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.

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:

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.

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.

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 my blog post on this), and since citizens want their local legislators to be subject to their ethics code, it is time to nip this problem in the bud.

Robert Wechsler
Director of Research-Retired, City Ethics

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