Why Strict Time Periods Are Problematic
When there is a time period in an ethics code investigation or hearing
provision, there is always the question: What happens if some
event does not take place within the designated time period? Does that
mean that the complaint is automatically dismissed?<br>
<br>
This issue arises due to a Pennsylvania Commonwealth Court (an
appellate court) decision dated March 17 in the case of <a href="http://www.aopc.org/OpPosting/Cwealth/out/106CD10_3-17-11.pdf" target="”_blank”">G.
L. v. State Ethics Commission</a>. My thanks to Patty Salkin's Law of
the Land blog for <a href="http://lawoftheland.wordpress.com/2011/04/05/pa-commonwealth-court-upho…; target="”_blank”">posting
about this decision</a>.<br>
<br>
In a proceeding involving a city council member, the state EC filed an amended findings report after the required 360-day
period. The court found that, had no findings report been filed within
this period, the complaint would effectively be dismissed. The argument
is that since no findings report can be filed after the period ends,
and no violation can be found without a findings report, there is no
violation.<br>
<br>
But since there was an original findings report and it provided enough
evidence to show a violation of the state ethics code, the lateness of
the amended report in this case was irrelevant.<br>
<br>
I'm not a big fan of strict time periods, because things sometimes go
wrong, and many of these things are outside the control of an ethics
commission. I am referring to such things as EC budget cuts, hiring
freezes, newly discovered information, intimidated witnesses, actions
brought by the respondent (sometimes including temporary restraining
orders and determinations that an investigation must be delayed until a
court decision is reached (with appeals)), and the inability to get a
quorum (sometimes due to the intentional failure of elected officials
to make appointments to the EC). With respect to hearings, they often
have to be continued because respondent's counsel can't make it, and
other reasons outside the control of the EC.<br>
<br>
In short, things happen, some of these things are in the control of the
respondent or his allies, and most of these things should not have any
effect on the proceedings.<br>
<br>
Time limits such as the one in the Pennsylvania case appear in ethics codes for two reasons. One is
to ensure that ethics proceedings are not drawn out. This is the reason
that the City Ethics Model Code once contained strict time limits for
the
hearing process, although not for the investigation process. But after
more thought, we decided to ease the time limits and the extension
process, because of the many reasons extension can become necessary and
the many ways in which a respondent can take advantage of time limits
in order to seek the dismissal of a complaint. (<a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC82…; target="”_blank”" target="”_blank”">Click
here</a> to read the City Ethics Model Code provision.)<br>
<br>
A good way to have time limits for guidance, but to allow for
unexpected events, is to have an extension provision, like the one below. Note
the important second sentence, which recognizes the difficulty of getting
a quorum. There's nothing worse than having a quorum problem lead to
the dismissal of a proceeding.<ul>
<p><b>4. Extension of time.</b><span> </span>Extensions
of time to any of the time limitations specified in this section may be
granted by the Ethics Commission upon a vote of four sitting members.
If no meeting can be held before such time limit runs out, the chair
may extend the limit until the following meeting.</p>
<p>a. The Ethics Commission must give written notice of any
extension(s) of time to the respondent and the complainant.</p>
<p>b. No extensions may be given for time periods required for
notification.</p></ul>
The other reason for strict time limits is that some elected officials
want to make it difficult for an ethics enforcement process to work. Time
limits are one
of the ways an ethics code that appears on its face, to
non-lawyers, to be serious about
enforcement can actually make enforcement very hard to achieve. This
sounds paranoid, but once you've seen the short time limits in some
ethics codes, you realize that one of two things must be true:
either the drafters do not live in the real world or they wanted to find a clever way to
make it hard for an EC to enforce the ethics code.<br>
<br>
As long as delay is a
principal legal tactic, and volunteer boards have trouble obtaining
information, meeting, and making decisions, time and extension limits
should not be too strict.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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