Decriminalizing Ethics Codes
I'd like to follow up on what I said at the end of <a href="http://www.cityethics.org/node/496" target="”_blank”">yesterday's blog entry</a>, about jurisdictions that make ethics violations criminal and require a
showing of guilt beyond a reasonable doubt and a showing of
intentionality or recklessness or negligence. Here is the penalty
provision in the Arizona Conduct of Office chapter, which applies equally to local governments (to see the entire chapter, click <a href="http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=38" target="”_blank”">here</a>
and scroll down to Chapter 3):
<br>
<p>38-510. <u>Penalties</u><br>
A. A person who:</p>
<p>1. Intentionally or knowingly violates
any provision of sections 38-503 through 38-505 is guilty of a class 6
felony.</p>
<p>2. Recklessly or negligently violates any
provision of sections 38-503 through 38-505 is guilty of a class 1
misdemeanor.</p>
<p>B. A person found guilty of an offense
described in subsection A of this section shall forfeit his public
office or employment if any.</p>
<p>C. It is no defense to a prosecution for
a violation of sections 38-503 through 38-505 that the public officer
or employee to whom a benefit is offered, conferred or agreed to be
conferred was not qualified or authorized to act in the desired way.</p>
<p>D. It is a defense to a prosecution for a
violation of sections 38-503 through 38-505 that the interest charged
to be substantial was a remote interest.<br>
</p>
<p>The City Ethics Model Code Project makes ethics violations <a href="http://www.cityethics.org/mc/full#TOC83" target="”_blank”">civil offenses</a>,
with a lower burden of proof ("clear and convincing evidence") and no
requirement to prove intentionality, recklessness, or negligence.<br>
</p>
Criminalizing ethics ignores the fact that enforcement is
not the principal reason ethics codes exist. Guidance and a good ethics
environment are far more important.<br>
<br>
Enforcement, when required, is itself intended to provide guidance to other officials, and assurance to citizens that ethical rules, and the trust they are intended to ensure, are taken seriously. Therefore, ethics enforcement should be relatively inexpensive and should not involve criminal
authorities. When offenses go beyond ethics into taking money from
public coffers and the like, then criminal law and authorities should
come into play.<br>
<br>
It is upsetting to see a lawyer refer to establishing an ethics violation as "very,
very difficult." This makes officials feel they are immune, that
nothing will happen to them. It is worse than having no enforcement
mechanism at all, because officials can then say what they are doing is
right, that they are innocent, even if the reason behind no charges
being brought is that criminal authorities don't feel the crime is
important enough to throw their resources at.<br>
<br>
If there is no enforcement mechanism, at least the issue of an
official's guilt or innocence is arguable.<br>
<br>
I think it is also wrong to have forfeiture of office be a set result
of an ethics violation, as is the case in Arizona. Most ethics violations are important enough to
deal with, but not important enough to deserve forfeiture of office.
This makes it even more unlikely that ordinary ethics violations will
be recognized and dealt with, so that other officials can understand
better what is acceptable and what is not.<br>
<br>
I believe that Arizona and the many other jurisdictions like it should
decriminalize ethics violations.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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