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Counter-Allegations Against Montana's Political Practices Commissioner
Monday, May 19th, 2014
Robert Wechsler
You're a government official who has had an ethics complaint filed
against you. You want it go away. What do you do? According to an
article in The Missoulian this weekend, there may be a
new arrow in your quiver: file a court suit demanding dismissal of the complaint on the grounds of a conspiracy to remove you from office and to act in a biased manner toward conservative officials.
Since the Montana case involves a court proceeding brought by the state Political Practices Commissioner, the respondent — the state senate majority leader — didn't have to file a suit. All he had to do was file a counterclaim.
The odd thing here is that the Montana ethics commissioner can seek the removal of an elected official from the 2014 ballot, when that official has been found to have violated a campaign finance law (in this case illegal coordination). This seems excessive, but it is the rare lawyer who would not seek the most serious sanctions at the beginning of a suit (if the matter were to be heard administratively, damages would not have to be discussed for a lot longer, at least outside settlement negotiations — yet another argument for handling ethics matters administratively rather than judicially).
It is rare for a proceeding such as this to be brought without what could be called a "conspiracy," that is, without the ethics officer in communication with others. An investigation has to be done, people need to be consulted, lawyers provide counsel. Therefore, any ethics proceeding could be alleged to have been a conspiracy, and even when an ethics commission cannot do more than impose a minor fine, an official can allege that a finding of an ethics violation would effectively remove him from office.
In fact, in this case the senate majority leader alleged that the action had caused him to suffer damages “through public ridicule, reputational impacts during his re-election efforts and being required to hire counsel to respond to the improper administrative and legal proceedings.”
The senate majority leader included in the conspiracy a state senator he defeated to become majority leader. This rival had told the senator that his illegal coordination would land him in prison. The suggestion here is that his rival pushed to have the action brought, that the rival effectively filed a complaint. Of course, many ethics complaints are filed by political rivals. Who else has the incentive? If this were actionable, ethics enforcement would be undermined.
The senate majority leader also accused the political practices commissioner of being not partisan, but liberal: "a corrupting influence in the campaign process by chilling conservative speech and involvement, and holding conservative candidates and officeholders to a different and higher standard for compliance.” The senate majority leader went so far as to accuse the political practices commissioner of acting against conservatives in order to ensure his confirmation next year by the legislature. These allegations could be made whenever there is not a perfect balance among those an ethics officer proceeds against or an ethics commission finds against. Since there is rarely such a balance (especially when more than party affiliation is considered), these allegations could almost always be made.
It is selfish and irresponsible to make such allegations without hard evidence, because they put into question just about everything the ethics program does, not just enforcement, but also its advice and its oversight over disclosure.
I think it is wrong to remove an official from the ballot for an ordinary ethics violation, but after reading this article, I would argue that, if the senate majority leader cannot provide hard evidence of his allegations, he should have the decency to take his name off the ballot all by himself. If he is right, however, Montana's ethics program is in dire need of an independent selection process, so that no official under its jurisdiction is involved in it.
Robert Wechsler
Director of Research-Retired, City Ethics
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Since the Montana case involves a court proceeding brought by the state Political Practices Commissioner, the respondent — the state senate majority leader — didn't have to file a suit. All he had to do was file a counterclaim.
The odd thing here is that the Montana ethics commissioner can seek the removal of an elected official from the 2014 ballot, when that official has been found to have violated a campaign finance law (in this case illegal coordination). This seems excessive, but it is the rare lawyer who would not seek the most serious sanctions at the beginning of a suit (if the matter were to be heard administratively, damages would not have to be discussed for a lot longer, at least outside settlement negotiations — yet another argument for handling ethics matters administratively rather than judicially).
It is rare for a proceeding such as this to be brought without what could be called a "conspiracy," that is, without the ethics officer in communication with others. An investigation has to be done, people need to be consulted, lawyers provide counsel. Therefore, any ethics proceeding could be alleged to have been a conspiracy, and even when an ethics commission cannot do more than impose a minor fine, an official can allege that a finding of an ethics violation would effectively remove him from office.
In fact, in this case the senate majority leader alleged that the action had caused him to suffer damages “through public ridicule, reputational impacts during his re-election efforts and being required to hire counsel to respond to the improper administrative and legal proceedings.”
The senate majority leader included in the conspiracy a state senator he defeated to become majority leader. This rival had told the senator that his illegal coordination would land him in prison. The suggestion here is that his rival pushed to have the action brought, that the rival effectively filed a complaint. Of course, many ethics complaints are filed by political rivals. Who else has the incentive? If this were actionable, ethics enforcement would be undermined.
The senate majority leader also accused the political practices commissioner of being not partisan, but liberal: "a corrupting influence in the campaign process by chilling conservative speech and involvement, and holding conservative candidates and officeholders to a different and higher standard for compliance.” The senate majority leader went so far as to accuse the political practices commissioner of acting against conservatives in order to ensure his confirmation next year by the legislature. These allegations could be made whenever there is not a perfect balance among those an ethics officer proceeds against or an ethics commission finds against. Since there is rarely such a balance (especially when more than party affiliation is considered), these allegations could almost always be made.
It is selfish and irresponsible to make such allegations without hard evidence, because they put into question just about everything the ethics program does, not just enforcement, but also its advice and its oversight over disclosure.
I think it is wrong to remove an official from the ballot for an ordinary ethics violation, but after reading this article, I would argue that, if the senate majority leader cannot provide hard evidence of his allegations, he should have the decency to take his name off the ballot all by himself. If he is right, however, Montana's ethics program is in dire need of an independent selection process, so that no official under its jurisdiction is involved in it.
Robert Wechsler
Director of Research-Retired, City Ethics
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