Louisiana Legislators Sue Ethics Board - Including Dialogue with One of the Legislators
Before I got around to putting up a blog entry on the ethics mess in Louisiana, it took a turn for the worse. What started as two legislators protecting the jobs, respectively, of their father and their brother, has turned into a full-fledged constitutional battle that could undermine the concept of recusal for conflicts of interest nationwide.
As it is now, ethics codes usually require that legislators, state and municipal, refrain from participating or voting in matters where they have a conflict of interest. The two Louisiana state representatives, Jeff Arnold (D-New Orleans) and Alex Heaton (R-New Orleans), are seeking an injunction against the Louisiana Board of Ethics to stop its investigation of and to prevent a hearing on their actions.
<a href="http://www.cityethics.org/node/254">Click here to read the rest of this blog entry.</a>
Here's what I originally wrote:
According to an article in the Baton Rouge <i>Advocate</I> (no longer available without charge), two Louisiana state representatives strenuously argued against a bill reducing the number of New Orleans assessors' offices from seven to one, although one's father and the other's brother were assessors who would lose their jobs. The representatives did file statements, as required by law, stating why they should be able to vote on the legislation and, therefore, were by law allowed to vote on it.
'We followed the letter of the law on the voting process,' one of them argued. 'As far as participating in the discussion, we have the right of freedom of speech. ... It's absolutely ridiculous. They are saying you can vote, but you cannot participate.' It is ridiculous. When you have a conflict, you shouldn't be able to participate <b>or</b> vote, either.
Or, from another point of view, you shouldn't be required to participate or vote. An ethical legislator with conflicting obligations should want to have a good excuse not to vote. Why? Because no one should be put in the position, for example, of voting about one's father's livelihood. Why is it always assumed that the only problem is voting one's own interests ' voting to protect your father's interest ' not voting <b>about</b> them? Why is it always assumed that officials put their self-interest ahead of the public interest? Just think how it would be if the representative had been conscientious and felt it was in the best interests of his constituents, considering Louisiana's poor financial situation, to cancel his father's job! No one should have to make this choice. It shows how powerful crude self-interest is that this side (the public-interested side) of having conflicts, and providing for recusal, is so rarely even mentioned. There is no better argument for ethics programs than the one-sided view of ethics most people have.
Back to the suit and to the legislation that is being prepared to deal with what Louisiana legislators see as an intrusion into their rights, an overstepping of authority by the Board of Ethics. The argument for both is constitutional. The Louisiana Constitution provides for freedom of speech in Section 7: 'No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.' It also provides elsewhere that, 'No member [of the legislature] shall be questioned elsewhere for any speech in either house.'
If it is determined by a court that its members' speech cannot constitutionally be limited on account of conflicts of interest, then it would not be able to impose this limitation on municipal officials, as it has, or on state officials and employees. If the two legislators win in court, the whole mechanism collapses. Since a vote can also be considered speech, legislators at all levels could not be prevented from voting either.
Here is the bottom line of what the legislators are asking: That the investigation of lawmakers for having participated in a matter where they admittedly have conflicts of interest, by citizens whose job it is to oversee lawmakers' ethics, should be declared unconstitutional under a provision designed to prevent citizens from having their speech limited by lawmakers. In short, lawmakers should be protected from citizens limiting their speech, the opposite of the constitutional protection afforded by the free speech provision.
Let's look at the legislators' arguments, to see if they're better than how I portrayed them. Leading the fight against recusal is Senator Cleo Fields (D-Baton Rouge), who calls the Board of Ethics' action 'an attack on the entire Legislature and on the system of democracy.' He does not believe the Board of Ethics should oversee lawmakers at all (it apparently didn't do this until 1997, and the legislature still selects the Board of Ethics' members, albeit, in the case of the Senate, from a list of candidates recommended by presidents of the state's private colleges), and he is proposing to set up a legislative commission to allow the legislature to regulate itself.
'This body ought to regulate itself. Congress regulates itself,' said Fields, a former Congressman, 'and they do a pretty good job of it.' Yeah, and all three levels of government did a fine job responding to Hurricane Katrina. The leader of the fight against the Board of Ethics does not seem interested in making credible arguments.
Fields also argues that since the executive and judicial branches govern themselves, the legislature should govern itself as well. The Board of Ethics is not much more executive than legislative: all members are independently selected by university presidents, with 7 of them being appointed by the governor, and 4 by the legislature.
In any event, self-regulation is wrong. It doesn't work in Congress, nor does it work well for executive or judicial branches, unless the oversight board is independent. Ethics boards across the country have run into budget, personnel, enforcement, and other problems when they are not sufficiently independent. Fields's argument is one of seeking the lowest common denominator, the most ineffective solution both in terms of enforcement and in terms of gaining the public's trust, without which democracy -- which he seems to care a great deal about protecting -- cannot function.
According to <a href="http://www.nola.com/timespic/stories/index.ssf?/base/news-4/11740240122… article in the <i>Times-Picayune</i></a>, House and Senate leaders are supporting the lawsuit and, presumably, Fields's change in the law, even though the Board of Ethics voted unanimously to investigate the conduct of the two legislators.
It doesn't help that, according to <a href="http://www.katc.com/Global/story.asp?s=6228659">an Associated Press article online</a>, the chair of the Senate and Governmental Affairs Committee has been fined twice for violating the state ethics code (recently, the chair was fined $5,000 for failure to follow a law aimed at disclosing elected officials' dealings with government agencies; about ten years ago, he was fined $7,500 for profiting from nonprofit groups he helped create as a legislator). And it doesn't help that Arnold, one of the two plaintiffs in the suit against the Board of Ethics, sits on the House and Governmental Affairs Committee.
On March 17, the Public Affairs Research Council of Louisiana <a href="http://www.bayoubuzz.com/News/Louisiana/Government/Louisiana_PAR_Announ… its Ethics Reform Agenda for 2007</a>, calling for tighter ethics provisions for state and municipal officials. And there is a new organization in town seeking political reform, Blueprint Louisiana, discussed in <a href="http://www.bayoubuzz.com/News/Louisiana/Politics/Blueprint_Louisiana_Wr… article online</a>. It appears that the more Louisiana citizens ask for reform, the harder the ball legislators want to play.
This would be another comical example of the oddest state in the Union (in terms of its laws) doing what it does best, if these legislators were not going to court and thereby putting in jeopardy ethics programs across Louisiana and across the nation. And they're doing this with respect to a situation that even the participants recognize is a conflict of interest, in fact, a situation where any ethically thoughtful official would want to be prevented from having to take a position: the jobs of immediate family members.
Louisiana political leaders have declared war on government ethics. The ethics community needs to fight back, and to use this as an educational opportunity. Here is some relevant contact information. I'll be sending out this blog entry. Let them know how you feel, as well.
<b>Rep. Arnold and I have had a good dialogue about issues involved in his suit. You can find our dialogue in the comments section to this blog entry (start at the bottom or just click <a href="http://www.cityethics.org/node/254#comment-43">here</a>).</b>
New Orleans <i>Times-Picayune</i> letters to the editor: <a href="http://www.nola.com/contactus" />http://www.nola.com/contactus/</a>
Baton Rouge <i>Advocate</I> letters to the editor: <a href="http://www.2theadvocate.com/help/letters">http://www.2theadvocate.com/h…;
Rep. Jeff Arnold: [email protected]</a>
Rep. (Mr.) Alex Heaton: [email protected]
Senate President Donald Hines: [email protected]
Senate & Governmental Affairs Committee: s&[email protected]
Senate & Governmental Affairs Committee Chair C. D. Jones: [email protected]
Senator (Mr.) Cleo Fields: [email protected]
House & Governmental Affairs Committee Chair Charles Lancaster, Jr.: [email protected]
R. Gray Sexton, Administrator, Louisiana Board of Ethics: [email protected]
Henry Perret, Jr., lawyer and new chair of Louisiana Board of Ethics: [email protected]
Public Affairs Research Council President Jim Brandt: [email protected]