Intent and Criminal Penalties for Ethics Violations

I begin the "Intent" section of my book Local Government Ethics Programs 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."

The next sentence is, "This is yet another reason why the criminal enforcement paradigm is not a very good fit for government ethics."

I raise this issue now because, according to an article in yesterday's Tampa Times, 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."

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.

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.

In any event, a focus on intentions is not realistic. It is hard to know others’ intentions, and even harder to prove them.

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.

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.

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.

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.

Criminalizing Ethics Enforcement
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.

In other words, the criminal enforcement of ethics violations is inappropriate, expensive, and shows no recognition of officials' fiduciary duty to their community.

According to the Tampa Times 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.

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.

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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