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The Fine Art of Fining
Saturday, May 8th, 2010
Robert Wechsler
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
An L.A. Times article featured this dreaded headline:
Agency Finds Hundreds
of Ethics Violations Among Politicians and Administrators
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 Dallas Morning News editorial throws the paper's support behind a $100,000 fine given by the Texas Ethics Commission 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:
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
---
This week there have been two newspaper articles featuring opposite ends of the fine spectrum.
Few Fines in California
An L.A. Times article featured this dreaded headline:
Agency Finds Hundreds
of Ethics Violations Among Politicians and Administrators
Issues Few
Fines
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 Dallas Morning News editorial throws the paper's support behind a $100,000 fine given by the Texas Ethics Commission 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:
-
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.
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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