Intent and Criminal Penalties for Ethics Violations
I begin the "Intent" section of my book <a href="http://www.cityethics.org/ethics%20book" target="”_blank”"><i>Local Government Ethics Programs</i></a> by
noting that, "One of the distinguishing aspects of government ethics
is the fact that it does not deal with or require a showing of
intent, willfulness, knowledge, or motive."<br>
<br>
The next sentence is, "This is yet another reason why the criminal
enforcement paradigm is not a very good fit for government ethics."<br>
<br>
I raise this issue now because, according to <a>an
article in yesterday's Tampa <i>Times</i></a>, the Florida Senate passed
ethics reform bills this week that (1) require the state ethics commission
(which has jurisdiction over local officials) to dismiss complaints
where the conduct was the result of "inadvertent or unintentional
error," and (2) make it a felony when an officeholder's ethical misconduct
is "motivated by money."<br>
<br>
To many laypersons, and anyone who sees government ethics as about
being good or bad, it seems wrong not to require intent. It also
seems wasteful of time and effort to prosecute situations where an
official says that he made an inadvertent error, nothing was stolen,
and no public funds were misused. Inadvertent errors, people
believe, should not be investigated and fined, they should be
forgiven. People are only human.<br>
<br>
However,
government ethics is not about being bad or having malicious intent.
And it's not about stealing or misusing public funds. These are
primarily criminal issues. What is most important in government
ethics are relationships, obligations, and the appearance of
impropriety, none of which involves intent.<br>
<br>
In any event, a focus on intentions is not realistic. It is hard to
know others’ intentions, and even harder to prove them.<br>
<br>
Requiring proof of intent does two things. One, it undermines the
public's trust. What the public sees is this: An official
helps to give a grant to a family member, helps get a permit for a
business associate, or helps get a contract for his wife. When
confronted with these facts, the official says he didn't realize
that the family member was working for the organization that got the
grant, that he didn't know the business associate represented the
development company getting the permit, that he didn't realize that
the contract was not being competitively bid. But how can anyone
know whether the official is telling the truth? The appearance is of
an official who not only misused his office, but also lied in order
to protect himself.<br>
<br>
The second thing about requiring proof of intent is that it makes an
ethics investigation and proceeding far more expensive and far less
likely to lead to a settlement or a finding of an ethics violation.
Effectively, it turns an administrative proceeding into a criminal
proceeding, even though no criminal penalties are involved. With far
more limited resources than the criminal justice system, this means
that there will be little enforcement of ethics laws and, therefore,
little concern about getting caught. This makes a poor ethics
environment far more likely.<br>
<br>
One question is whether an official's fiduciary duty to the
community, and his knowledge that the public can have no idea what
he knew, requires him to either (1) ask questions to be sure that he
has no special relationship to anyone in a matter or (2) set up a
process by which anyone who seeks benefits from the local government
is required to disclose such special relationships. I think that an official has an obligation to do the former, which means an obligation to do the latter, both for his benefit and for the public's benefit.<br>
<br>
Another question is whether an official's ignorance or inadvertence
should be a complete defense or instead a mitigating factor in the
determination of a penalty. I think the latter is far more
appropriate.<br>
<br>
<b>Criminalizing Ethics Enforcement</b><br>
Adding criminal penalties is similar to requiring a show of intent,
in that it makes it very difficult and expensive to enforce the
rules. But it does even more. It takes enforcement out of the hands
of the ethics program and into the hands of a prosecutor, who has little understanding
or interest in government ethics, and is more politically involved than an
independent ethics commission. Criminal penalties also require a far higher burden
of proof and far more due process, due process which is intended
to protect citizens from the government, not government officials
from citizens.<br>
<br>
In other words, the criminal enforcement of ethics violations is
inappropriate, expensive, and shows no recognition of officials'
fiduciary duty to their community.<br>
<br>
According to the Tampa <i>Times</i> article, Integrity Florida is critical
of the requirement to dismiss due to inadvertent error. But it does
not appear to be critical of additional criminalizing of the ethics
program. This is common, because criminalizing looks like being
tough. But it's not. It's a way of taking authority from the ethics
program and making it less likely that an official will be found to
have committed ethical misconduct.<br>
<br>
There is no doubt that the Florida ethics commission is weak. The
ethics reform bill does give it more authority, although not nearly as much as it needs. But at the same time
it takes away authority and makes the commission's work more difficult.<br>
<br>
It needs
to be pointed out that criminal penalties are not a form of
strengthening an ethics program, or making it tougher. They are a
way of taking authority away from an ethics program and confusing
the difference between government ethics violations and crimes.<br>
<br>
For more on the Florida Senate's ethics reform bills, see the attached analysis by Phil Claypool, former executive director of the Florida ethics commission.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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