Serious Penalties — Criminal vs. Civil
I'm going to keep showing how wrong the criminal
enforcement of ethics laws is until there is at least some sign of
movement away from it. This time I will do it by looking at two recent
proceedings in which serious penalties are involved, one criminal, the
other civil. The criminal penalties are about punishment, the civil
penalties about strengthening the ethics program and sending important
messages to other officials and employees.<br>
<br>
<b>Eye-for-an-Eye Punishment</b><br>
The criminal case involves the mayor of Pico Rivera, a city in Los
Angeles
County. According to <a href="http://www.whittierdailynews.com/news/ci_17426341" target="”_blank”">an article in
the Whittier <i>Daily News</i></a>, he has been convicted of voting on a
street light and a street improvement project near his fast food
restaurant <a href="http://www.wienerschnitzel.com/" target="”_blank”">Der Wienerschnitzel</a>. Both
offenses are misdemeanors. For this, the D.A. is asking for the mayor
to be sentenced to 90 days in the county jail and to have him banned
from running for elective office for four years.<br>
<br>
The assistant D.A. said, "I think some
custody time is appropriate based on the fact that it wasn't one act.
It was two acts on which he was
convicted of."<br>
<br>
If the judge won't put the mayor in jail, but instead requires community service, the D.A.
doesn't want the service to be done in Pico Rivera. That seems nothing
but vindictive.<br>
<br>
There's no doubt that the mayor should have withdrawn from both
matters, but putting him in prison and keeping him out of office for four
years makes no sense. It could even be argued that the D.A.'s political grandstanding is at least
as much about personal interest and at least as damaging to public
trust as what the mayor did.<br>
<br>
Eye-for-an-eye and tooth-for-a-tooth punishment has no place in
government
ethics. Nor is it good to allow people with little interest in the
entire ethics program to have a role in determining penalties.<br>
<br>
<b>Strengthening the Ethics Program</b><br>
There are occasions where ethics violations do deserve harsh penalties,
although not as harsh as this. An example just happened to appear in my
e-mail inbox today. The Massachusetts Ethics Commission reached a
disposition agreeement (attached; see below) with a local board of health
sanitary inspector, in which the inspector agreed to a civil penalty of
$35,000, which must be a sizeable percentage of his annual salary.<br>
<br>
What did he do to deserve this? On at
least 50 occasions, he performed constable services on behalf of
private property owners and/or managers for which he received
compensation, and on at least 32 occasions, he performed
inspections on properties owned and/or managed by
private parties for whom he performed constable services.<br>
<br>
It is not just that the constable services and inspections violated the
ethics code, but that he was expressly told by the EC's enforcement
division, in 1998, that both of these were violations and that he
should no longer do them.<br>
<br>
In other words, violating an ethics code is one thing, violating an
ethics warning letter is another. Not only can the official not say he
did not know the law, but if he does not understand how it applies in
any particular situation, he certainly knows who to ask.<br>
<br>
This is not eye-for-an-eye justice. This is the way an ethics
commission makes it clear that it means business when it sends out a
warning letter. What it does is strengthen the warning letter process
so that enforcement proceedings will be less frequent. It is a concrete way to show officials and employees
that education and advice are more important to the ethics program than
enforcement. It is a way to strengthen
the ethics program, not a way to punish.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
---