Rhode Island Oral Arguments: On Inherent Conflicts in the Ethics Process

Anonymous

Thu, 05/14/2009 - 10:55

Complaints/ Investigations/Hearings

Yesterday, the Rhode Island Supreme Court held oral arguments on the
appeal of the RI legislative immunity decision. I want to focus on two
important issues that arose in the oral arguments, according to <a href="http://www.projo.com/news/content/SUPREME_COURT_ETHICS_05-14-09_BLEC7F3…; target="”_blank”">an
article in the Providence </a><a href="http://www.projo.com/news/content/SUPREME_COURT_ETHICS_05-14-09_BLEC7F3…; target="”_blank”">Journal</a>.
But first I want to share with you a photo from the Journal (photographer: Mary Murphy)
that shows something I never thought I'd see: a protest sign against
the Speech or Debate Clause (Speech in
Debate in R.I.) in the context of government ethics. (click on attachment below to see the photo)

Due Process and Inherent Conflicts 
The first issue raised in the oral arguments involves due process. One
of the justices asked an ethics commission attorney, “Does it trouble
you that [the official] never gets a trial before an impartial body?
It’s before the body accusing him.” According to the article, the
former legislator challenging the EC's jurisdiction over him said this was the
most "poignant moment" for him. “The silence was
deafening. My experience has taught me that due
process is surely challenged in a structure like that.” 
 
The commission attorney was interrupted before she could respond, so
this question remained rhetorical. One problem with the question is
that it was not quite accurate. The EC usually does not accuse the
official before it (a completely unrelated complainant does this, as in
the RI case); the EC only finds a complaint worthy of being heard.
Similarly, a district attorney determines whether it is worth having
criminal charges heard, charges it formulates itself, creating more of
an inherent conflict than the usual ethics situation. 
 
Also, the relationship between police and DA is much cozier than the
relationship between complainant and EC staff, which is usually nonexistent. There are certainly more
inherent conflicts in the criminal situation. 
 
And just as most criminal matters are settled, so are most ethics
matters (or at least they should be). In criminal matters,
the settlement is made not with the body that will hear or has heard
the matter, but with the prosecution. In ethics matters, settlements
are made with the prosecution (commission staff) and then approved by
the body that has heard or would have heard the matter, the commission.
So far, the ethics situation has more due process than the criminal
situation. 
 
Only when an ethics matter goes to a hearing is there possibly less due
process and more of an inherent conflict. One, there is no jury. But
what is there? In most cases, there are people chosen by government
officials (as in RI) who hear cases against government officials. On
its face, EC members' sympathies would be with government officials
more than juries' sympathies would be with the average criminal
defendant. No due process problem there. 
 
In some cases, EC members are not chosen by government officials, but
by independent people. Then the EC would consist of independent
individuals, much like a jury. No due process problem there. 
 
The second issue is the most important. EC staff acts as
prosecution while the EC acts as judge and jury. This is the central
problem with the typical ethics process. Even though one might believe
that EC members are biased toward government officials, they are also
biased toward the prosecution, who work for them, who supply them with
expertise and information, and with whom they are personally familiar.
They are likely more trusted than officials' lawyers, as well. 
 
In other words, this is an administrative situation, which requires a
lower level of due process. Why should this be allowed? Because
officials are not being accused of crimes. They are only being accused
of not dealing responsibly with conflicts of interest (as in the RI
case), of not providing sufficient disclosure, of giving contracts to
relatives, and things like this. They will not go to prison, they will
not be fined that much, if at all (especially in local governments),
they will not lose their positions (except, possibly, indirectly), and
they have every opportunity to admit their failures to take
responsibility and provide whatever restitution they can. 
 
Criminal due process is simply not required in government ethics, and
it would make the system unworkable and extremely expensive. Would
government officials truly prefer to be prosecuted for their ethics
violations (other than their getting a beyond a reasonable doubt burden of proof)? Do they truly believe this would further the public
interest? An important purpose of ethics enforcement is to create a
system short of prosecution to deal with problems before they become of
criminal severity. 
 
Bribery and the Speech or Debate Clause 
This leads right in to the second issue. Counsel for the charged former
State Senate presdient said as an example of how the Speech in Debate
Clause works, “A legislator can be convicted of bribery but the
proof can’t be the vote. The vote is protected.” 
 
Ever try to convict an official of taking money for a vote without
being able to tell the jury how the official voted? When the vote's
protected, so is the bribery, in most cases. 
 
In any event, bribery is a crime, not an ethics violation. Taking
unauthorized gifts, no matter what the vote, is an ethics violation.
But you won't go to prison for it. And note that evidence of a vote is
not required. That's one reason why it's so much easier to deal with
ethics violations than criminal violations. And why the ethics process
should be preserved, with full jurisdiction over legislators. It's in
the public interest. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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Rhode Island Oral Arguments: On Inherent Conflicts in the Ethics Process

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