The Fine Art of Fining

Anonymous

Sat, 05/08/2010 - 05:36

Disclosure

When it comes to ethics fines, it's hard to satisfy anyone. Fines
are usually too large or too small, depending on whom you ask. No one likes to be punished, and no one likes the guilty to get off easy. So what is an ethics
commission to do? 
 
This week there have been two newspaper articles featuring opposite
ends of the fine spectrum.

Few Fines in California 
<a href="http://www.latimes.com/news/la-me-0505-ethics-violations-m,0,7560940.st…; target="”_blank”">An
L.A.
Times article</a> featured this dreaded headline:

<h2>Agency Finds Hundreds
of Ethics Violations Among Politicians and Administrators Issues Few
Fines</h2>

The agency is California's Fair Political Practices Commission (FPPC),
which has jurisdiction over both state and local officials, and is
often taken to task for not being tough enough (this is one reason
there are so many local ethics commissions in the state, as there
increasingly are in Florida, as well). 
 
Although the number of findings of a violation doubled between 2008 and
2009, only one of six violators received a fine. The rest got "warning
letters." 
 
The FPPC explains that most offenders are guilty of minor violations,
and that the warning letters go online, so that there is at least a
public record of their violations. Also, with limited resources and a
huge backlog of cases, the FPPC can only afford to prosecute a small
percentage of cases. 
 
One problem is that ethics violations are criminal in California, and criminal prosecution costs a lot of money and takes a lot of time. In
Massachusetts, where ethics enforcement tends to be civil, there are far more fines. And
instead of warning letters, in Massachusetts there are disposition
agreements, in which
officials acknowledge their ethics violations and agree to pay a fine. 
 
In short, fines handed out, and their amounts, vary for a number of
reasons. 
 
A Texas-Size Fine in Texas 
<a href="http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stori…; target="”_blank”">A
Dallas
Morning News editorial</a> throws the paper's support behind a<a href="http://www.ethics.state.tx.us/sworncomp/2009/290354.pdf" target="”_blank”">
$100,000 fine given by the Texas Ethics Commission</a> to the presiding
judge of the Texas Court of Criminal Appeals. The editorial argues that
the judge failed to disclose millions of dollars of assets, while claiming that she
lacked sufficient assets to pay private counsel to fight allegations
that she improperly closed the court to a last-minute death-penalty
appeal. 
 
When a judge argues that her errors were unintentional, it doesn't hold
up well in the court of public opinion. "If Keller's omissions
were, as she argues, unintentional, they suggest either a troubling
lack of familiarity with state disclosure law or a troubling lack of
familiarity with her own finances." 
 
In other words, there would be more sympathy for a small-town official
who's not a lawyer than for a presiding state judge. 
 
The editorial concludes as follows: 
<ul>
If [elected officials] are permitted to escape with a slap on the
wrist and a mea culpa, they will continue to make sloppy mistakes and
even willfully thwart the law. The Texas Ethics Commission sent a
needed message by imposing a fine of this magnitude. 
</ul>
A $100,000 fine certainly sends a message, but a fine doesn't have
to be this large to send the message. What happens when the next
official doesn't file a statement at all? Do you set the fine at
$200,000? And what if that doesn't work? 
 
The Massachusetts Approach 
The Massachusetts approach of getting the great majority of
officials to admit their violation and accept sizeable fines is, I
think, preferable to just handing out enormous
fines. 
 
The problem with this judge is most likely not that she is
hiding possible conflicts of interest (which is, after all, the purpose
of disclosure requirements), but that she doesn't feel the extent of
her personal
wealth is any business of the government or the public. She needs to
learn a little humility and recognize that public officials must make
certain sacrifices. 
 
But a fine as large as $100,000 might actually make her, and future
officials in her position, look like victims. This feeds right into her (and others') feelings about government interference, and ensures no change in how Texas officials deal responsibly with their conflicts. 
 
In addition, large fines can cost a lot of money and create a lot of
bother for underfunded ethics commissions. In this instance, the judge
has said she will appeal the ruling. No only will the appeal be costly,
but a record fine such as this one will give her appeal more validity.
That is, she will be able to argue that she was discriminated against,
partly because of her refusal to accept the death-penalty appeal (the
editorial's argument, as well as many others'), which
is irrelevant to the disclosure issue (although not to the humility
issue). 
 
Under the Massachusetts approach, the judge would have admitted to
her violations and accepted a fine of $20,000 or so. No hearing, no appeal, and
far more than a slap on the wrist. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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