Another Strike Against the Honest Services Statute in a Local Government Context

Back in January, <a href="http://www.cityethics.org/content/government-employees-and-class-except…; target="”_blank”">I
wrote about</a> the California Supreme Court's decision in a criminal
conflict of interest prosecution against members of a San Diego pension
board. In that post, I wrote about how to solve the problem that led to the case's dismissal: local government
employees being considered a class (like businesspeople or senior
citizens) that is excepted from the conflict of interest provision (in
my solution, a council member over 65 can vote on a senior citizen
center, but a council member who is a town employee cannot vote on a
town employee pension matter).<br>
<br>
Last month, a <a href="http://media.signonsandiego.com/news/documents/2010/04/07/Benitez_Pensi…; target="”_blank”">federal
district court reached a decision</a> on the same matter. However, it was
prosecuted under the honest services statute (I discussed the statute <a href="http://www.cityethics.org/content/telling-local-government-officials-ab…; target="”_blank”">here</a>). The court found the honest services statute too vague
for prosecution in this case, since it was not a matter of local
government officials putting money in their pockets, even though they
benefited from their decisions along with other local government
employees.<br>
<br>

The court found that "the potential breadth of the undefined honest
services provision leaves open the potential for ad hoc and
after-the-fact definitions of crime which do not give fair notice or
guidance to citizens employed in government service. This is especially
true for the conflict of interest-type prosecutions."<br>
<br>
This issue will soon be decided by the U.S. Supreme Court (see <a href="http://www.cityethics.org/content/supreme-court-consider-how-honest-ser…; target="”_blank”">my
blog post</a> on this), which will be considering three different
prosecutions made on the basis of the honest services statute.<br>
<br>
According to <a href="http://www.sandiego6.com/news/local/story/D-A-Drops-Charges-Against-Six…; target="”_blank”">an
article yesterday on the San Diego 6 website</a>, the district attorney
has dropped the conflict of interest charges in this case.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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