Taking Responsibility for COGEL Awards
Yesterday, at the annual conference of <a href="http://www.cogel.org/">the Council on Governmental Ethics Laws (COGEL)</a>, the only association of state and local government ethics professionals, Judge Anthony Wilhoit was given the COGEL Award, which is
given annually to someone who has "made a significant, demonstrable,
and positive contribution to the fields of campaign finance,
elections, ethics, freedom of information or lobbying for a
significant period of time." As the executive director of the
Kentucky Legislative Ethics Commission since 1997, Judge Wilhoit has
certainly made a substantial contribution, although no more than dozens of other executive
directors and other staff members of ethics-related bodies, not to
mention legislators, good government organization leaders, and
academics.<br>
<br>
The reason that I am writing about this particular award selection
is that COGEL has consistently refused, as an organization, to
embrace and spread the most important values of government ethics
(such as transparency and ethics program independence). And yet it
annually takes a strong position on values when it permits a small
committee (on which I sat last year) to select a COGEL Award winner.
I believe that it is time to either stop giving out COGEL Awards or
start having an organization-wide discussion of values to embrace
and spread in a world that has little understanding of government
ethics.<br>
<br>
Although I do not generally cover state ethics commissions, I have
written two blog posts about Judge Wilhoit's commission, both of
them very critical. <a href="http://www.cityethics.org/content/ec-independence-and-initiative-kentuc…
2009, I wrote</a> about the effects on ethics enforcement since
the state ethics rules were changed in 1996, the year before Judge
Wilhoit was hired.<br>
<br>
<b>Ethics Program Independence</b><br>
The changes, which led to the resignation of the Legislative EC's executive
director and most of its members, involved the commission's
independence. Instead of having EC members nominated by the attorney
general, the state auditor, the Judicial Retirement and Removal
Commission, and the Kentucky Registry of Election Finance, the House
and Senate decided that they would be nominated by the House and
Senate leaders, that is, by the most important individuals under the
commission's jurisdiction.<br>
<br>
Every time an EC appointed by legislative leaders dismisses an
ethics complaint against a legislator, no matter how appropriate the
dismissal is, and every time such an EC provides advice that allows a
legislator to do something that appears to be in her self-interest,
it looks like the EC members are favoring those who nominated them.
This is why independence is the most important attribute of an
ethics program. Otherwise, an ethics program's trustworthiness can, and will, be questioned again and again.<br>
<br>
And yet it does not appear that Judge Wilhoit sought to reobtain
independence for his EC. In fact, <a href="http://www.publicintegrity.org/2001/12/13/6478/watchdogs-short-leashes"…
2001 Center for Public Integrity article</a> says that Judge
Wilhoit "asserted his confidence that the commission could rule
impartially on a matter involving a legislator. 'I think we're
pretty independent,' he said." But what an EC or its executive
director thinks about its independence and impartiality is
irrelevant. What matters is what the public thinks.<br>
<br>
By giving Judge Wilhoit the COGEL Award, COGEL appears to be
accepting this view of independence over the more responsible view
that the former EC members, executive director, and I, among many other government ethics professionals, take. <br>
<br>
<b>Self-Initiation of Investigations</b><br>
The other major change made in 1996 involved EC initiative in
opening investigations. In the three years before 1996, when the EC
could fully initiate investigations on its own, based on anonymous
tips, newspaper stories, or whatever, the EC opened almost thirty
investigations. Since Judge Wilhoit was appointed, the commission's
limited right to initiate investigations has been applied almost
exclusively to campaign finance cases. The result has been almost no
successful enforcement proceedings over the following 15 years. <br>
<br>
Yes, as Judge Wilhoit says, training and advice are more important
than enforcement. But this does not look good. Enforcement proceedings should be rare not because people are afraid to bring them, or feel it would be a waste of time, but rather because an ethics program has been successful in preventing ethical misconduct.<br>
<br>
<b>Recommending Ethics Reforms</b><br>
In a rare finding of a violation last year, which arose from an auditor's
investigation, the EC reprimanded and fined a state representative
$2,000 (the top fine) for voting on a matter that led to one of his
companies getting more than $171,000 in no-bid contracts. Why should
a state rep be getting a no-bid contract in the first place? If this
is legal, an EC should push to change the law. If a reasonable
penalty cannot be applied, an EC should push to raise the fine limit.<br>
<br>
Values go from ideas to practice when an EC recommends changes to
ethics laws. Many of the Kentucky EC's recommendations have been
good. But it has supported neither more independence nor more
initiative, nor in the year after the no-bid contract matter did it
make a recommendation regarding this important topic nor one to
increase the fine limit. <a href="klec.ky.gov/NR/rdonlyres/B52513C5-9081-4535-BA19-C8AEBE7D032F/0/Changes2012.doc">What
it did recommend</a>, in addition to improvements, was a naive
pandering to legislators:<blockquote>
Authorize the Legislative Ethics Commission to dismiss a complaint
without prejudice if the complaint or preliminary inquiry is
publicly disclosed by the complainant, or the complainant comments
publicly about the complaint. <i>This would address the problem of a
complaint being filed in an election campaign, where a complainant
may be attempting to use the complaint process for political
purposes.</i></blockquote>
This would not address this problem (1) because the complainant can
simply leak the filing of the complaint and comment anonymously on
it, and (2) because the complainant could simply refile the
complaint immediately after it is dismissed. In any event,
allegations can be made without filing a complaint. Finally, a
legitimate complaint, which is intended to protect the public trust,
should never be thrown out to penalize someone. Once a complaint has
been filed, it is no longer the complainant's or the ethics
commission's. It is the public's.<br>
<br>
<b>Freedom of Speech</b><br>
What does it say about a judge that he would seek to place
restrictions on freedom of speech, which have been found
unconstitutional in some circuits, for a provision that would not
even provide the protection it says it will provide? And what does
it say about an EC executive director that he would be willing to
throw out a legitimate complaint to prevent unpreventable political
abuse?<br>
<br>
Judge Wilhoit's values regarding freedom of speech are also central
to the second situation, which <a href="http://www.cityethics.org/content/ec-members-should-respond-constructiv…
wrote about just last year</a>. A lawyer and former state senator
was angered by a Kentucky Legislative EC dismissal, wrote <a href="http://news.lawreader.com/?p=2925" target="”_blank”">a
letter to the EC</a>, and gave it to reporters. In this letter,
the lawyer said he disagreed with the decision and that he felt what
occurred was illegal.<br>
<br>
A former state court of appeals judge who sat on the EC was enraged,
and two days later he filed a complaint against the lawyer with the
state bar association. Judge Wilhoit defended this filing, including
personally to me.<br>
<br>
When an EC makes decisions, it will be criticized. Even its members
will be individually criticized. It may not be nice, but it's
acceptable in the United States and it should be expected. No EC
member should file any sort of complaint against anyone who
criticizes the EC's processes, decisions, or members. The EC
should respond positively to any valuable criticism, and explain why
false statements are false. Beyond the First Amendment free speech
issues involved in bringing an action against even a seriously
irresponsible critic, doing so is, I feel, a misuse of office.<br>
<br>
Judge Wilhoit appears to feel otherwise. His values in this matter
differ in important ways from mine. He holds that EC members, even a
former judge (like himself), may use their status to retaliate
against critics.<br>
<br>
Does COGEL as an association embrace this value? No, I don't think
it does. I doubt whether this year's Awards Committee members knew
about this situation, or even bothered to research or ask if there
was any reason Judge Wilhoit should not be given the award.<br>
<br>
<b>COGEL Must Take Responsibility</b><br>
But that is only a guess. By allowing the award to be given, COGEL
did say to the world that its highest award is due to someone who
steps in to legitimize changes made by legislators to their ethics
program, changes that led the EC's executive director and most of
its members to resign, changes that included the removal of the EC's
independence; to someone who apparently did not try to get the EC
back its independence because he does not value this; to someone who
would limit a complainant's free speech even though it would protect
nobody and might be harmful to the public interest by preventing a
legitimate complaint from being heard; to someone who supports EC members
retaliating against people critical of EC decisions.<br>
<br>
This is a controversial and, I think, damaging statement of values. And
whatever COGEL's board, Awards Committee members, or ordinary
members knew or believe, COGEL needs to take responsibility for what
its award effectively said. Yes, Judge Wilhoit certainly did a lot
of good for government ethics over the past 15 years, but at least
from what I know, he has also done more bad for government ethics
than most people in his sort of position.<br>
<br>
I believe this should be the last time COGEL gives a COGEL Award
unless the organization sits down and decides it will take
affirmative stands on the values that are most important to
government ethics and try to spread these values throughout our
society. This is what an award does, and COGEL needs to recognize
this. If taking responsibility for the distribution of important value statements is not what COGEL wants to do, it should stop giving
out COGEL Awards.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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