A Criminal Failure
I hate to harp so often on the problem of ethics matters being handled
by criminal authorities, but when I read <a href="http://www.nogalesinternational.com/articles/2008/11/28/news/doc4930183…; target="”_blank”">an
article</a> in the Nogales (AZ) <span>International</span>
that begins as follows, I get angry.<ul>
While there was “ample evidence of
incompetence,” it took more than two years for Nils Urman, former Santa
Cruz County Commerce and Economic Development Director, to be cleared of
criminal wrongdoing by the Arizona Attorney General’s Office and the
state auditor general.<br>
<br>
This, despite the fact that he approved a falsified invoice and
diverted $18,480 in grant money under his control to Nogales Community
Development, a non-profit corporation for which he served as president.</ul>
Urman's ample incompetence consisted in : "(1) improperly spending
[grant] monies in excess of the financial limits that the grant awards
established, (2) spending monies for purposes that the grants’ terms
and conditions did not allow." The cost to the county was $193,000
(total grants during the period were $778,000; this means an overexpenditure of
25%).<br>
<br>
Such an enormous overexpenditure requires strong accounting controls.
But what about the diversion of grant money to his own nonprofit? That
certainly belongs before an ethics commission, and there would be no
need for a two-year investigation.<br>
<br>
I asked some municipal and state ethics professionals for their
experiences with criminal vs. civil solutions to problems. Most of them
hand over criminal cases to criminal authorities; some are required to
do this. But the situation varies. For example, in Austin, corrective
personnel action doesn't wait on the criminal process, but this is not
an option for elected officials. In Nevada, a public official sometimes
settles with the ethics commission and avoids criminal prosecution, but
where ethics violations occur during criminal activity, the cases are
prosecuted by a district attorney.<br>
<br>
In Honolulu, in most cases, criminal authorities prefer that the ethics
commission conducts its administrative proceeding while they pursue
their case. And the criminal authorities refer to the EC cases
involving misconduct that they choose not to prosecute, allowing the EC
to review the investigation to see if a case should be pursued.<br>
<br>
Chuck Totto, executive director and general counsel to the Honolulu EC,
wrote well about the pluses and minuses of the criminal and ethics
processes. "Police and prosecutors often have more resources available
to handle cases where there are violations of the ethics and
criminal laws. On the other hand, there were concerns
from actual cases that (1) city officials may not be prosecuted because
of the higher standard of proof required for a criminal conviction and
(2) city officials are unlikely to receive jail time because white
collar criminals rarely do on their first offense. In some cases
an administrative process can be speedier and result in a direct
employment-related decision (e.g., firing or suspension without pay)
that may be more effective than waiting for the criminal wheels to
turn. We've seen too many cases where the public is flabbergasted
that it takes two years to bring the case to trial and the culprits
receive probation with a suspended sentence. In one case, the
city employee received a promotion during the pendency of the
criminal case."<br>
<br>
Other blog entries on this topic include <a href="http://www.cityethics.org/node/497" target="”_blank”">1</a>, <a href="http://www.cityethics.org/node/587" target="”_blank”">2</a>, <a href="http://www.cityethics.org/node/548" target="”_blank”">3</a>.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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