Extension of Legislative Immunity in Recent Case of New York Municipality

I may seem obsessed with legislative immunity, but it is both a timely topic for so old a constitutional concept and a serious threat to local government ethics enforcement that, I feel, the government ethics community should start dealing with offensively rather than, as it is now being handled, defensively.

A decision of the Second Circuit Court of Appeals last year, Almonte v. City of Long Beach, 478 F.3d 100 (2nd Cir. 2007), extended legislative immunity into new parts of a local government legislator's activities. The decision found that legislative immunity under the Speech or Debate Clause of the U.S. Constitution (pursuant to the Bogan decision) "applies not only to the City Council members’ vote on the budgetary resolutions that eliminated the funding for the plaintiffs appellees’ positions, but also to any discussions and agreements the Council members may have had regarding the new budget prior to the vote, regardless of whether those discussions and agreements took place in secret." The reasoning of the court was that these activities are an ordinary part of the legislative process, and that neither political motives nor secrecy takes away from the legislative character of the process.

In this case, newly elected council members of one party got together with party leaders to talk about getting rid of officials from the other party. They decided to terminate funding for the following positions:  bus dispatcher, tax assessor, administrative aide, and superintendent of municipal buildings. That certainly sounds to me like rational, protectable legislative activity, because what city needs a tax assessor or a building superintendent?

By the way, the cause of action in this case involved free speech and due process rights involving the officials' termination. In other words, unethical conduct but not the sort dealt with by ethics laws.

The good news is that the court limited its decision to termination of the officials via the budget or other, at least on its face, legislative action. Any administrative termination, or conspiracy to terminate administratively, would not be protected by legislative immunity.

So the word on the street is: find a good sneaky way to do whatever you do under the guise of legislative activity. Legislative activity is the antidote to any unethical activity. That's where we are right now. How are we going to get out?

As I suggested recently, the whole idea of legislative immunity should be opened to question. But in addition, government ethics practitioners should seek to have ethics codes amended so that local government legislators expressly waive their legislative immunity to ethics enforcement. But I don't think this is enough, because it is an individual right and a law is not an individual waiver, not even necessarily by those who vote for it, Therefore, in addition, I think that every time anyone who may be considered to participate in legislative activity, including school board members, and members of financial and zoning and other property-oriented boards, should be asked when they are sworn in to expressly waive his or her legislative immunity to ethics enforcement.

Anyone with thoughts on any of these three solutions, please comment or send me an e-mail.

Robert Wechsler
Director of Research-Retired, City Ethics

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