Supermajority Votes in the Probable Cause Phase of Ethics Enforcement

Requiring supermajority votes by ethics commissions to find probable cause or a violation is probably the best obstacle elected officials can place in the way of effective ethics enforcement. This is especially true of the probable cause phase, if there is one.

Take the typical five-member town or small city ethics commission. It is common for two members to be from one party, two members to be from another party, and a fifth to be independent or from a third party. When probable cause has to be found before a complaint becomes public, a supermajority requirement (four of five members) allows one political party to prevent a complaint against one of its party members from even becoming public.

In fact, since it is very difficult to get five citizens together for a meeting, a supermajority requirement effectively requires a unanimous vote (or even one member more than a three-member quorum) just to get to the stage of a public hearing. This is a very high hurdle to jump.

Those writing codes, amending codes, or critiquing codes should give special attention to any supermajority requirements that exist or that the powers that be are pushing for. They will speak of protecting officials from frivolous complaints, but a majority vote does this perfectly well. In fact, the principal point of having a probable cause phase is to prevent frivolous allegations from going public.

A supermajority requirement skews this protection far too strongly in the official's favor, to the detriment of the public's trust in the system:  if one party or one person can block a complaint from becoming public, no one will believe in the enforcement process, and the entire ethics program will become seen as a political game.

Robert Wechsler
Director of Research-Retired, City Ethics

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