Ethics Commission Allegations Against a Candidate Soon Before an Election, and a Resulting Suit

Here's a tough call. It's a few weeks before a primary election, and you (a local ethics commission member or staff member) learn that a candidate has violated an ethics code provision, and hidden it via a false disclosure. Do you act or do you sit on your hands until after the election?

Often this sort of problem arises when a complaint is filed by an opposing candidate or party member, that is, when the filing is politically motivated. But what should an EC do when there is no outside involvement, when it isn't an issue of getting caught up in a candidate or party's attempt to win an election by smearing an opponent?

It's certainly in the public's interest to know that a candidate has been playing games with the ethics code. Learning this after electing the candidate is not only too late but, if it's a serious offense, it could require another election soon after.

But as far as the candidate is concerned, you better be very, very sure of your facts, because hell hath no fury like a losing candidate's scorn.

Earlier this month, according to an article on philly.com, a losing Philadelphia district attorney candidate sued the city's board of ethics and its executive director for making "frivolous, misleading, and false statements" to "sabotage McCaffery's campaign, to embarrass McCaffery, and to tarnish his name and reputation in the eyes of the voting public."

Considering that Dan McCaffery entered into a settlement agreement with the board, admitting that his campaign committee had violated the code, it seems that he is better at tarnishing his name and reputation than anyone else.

It's interesting to look at what he did and admitted to, although he did not admit to having done it intentionally.

According to the settlement agreement, on December 31, 2008, the McCaffery committee accepted a contribution check from his own law firm's PAC, called the Pennsylvania Good Government Fund. This contribution took the campaign over the $100,000 limit on PAC contributions for that period. But the committee (with the Fund's approval) reported only the amount of the contribution that took PAC contributions right up to the $100,000 limit, and allocated (and reported) the rest of the amount to the next period.

Very clever, and apparently legal in the federal arena, but illegal in Philadelphia. Before the action against him was filed, McCaffery made the argument that he was allowed to allocate the contribution amount like that, but shouldn't a lawyer know to check and see whether it's legal (or ask an ethics board staff member)? If the violation was not deliberate, it seems to have been deliberately negligent.

There are some errors in the ethics board's press release. The primary factual error is saying that McCaffery was his campaign's treasurer (is that even legal?). The primary legal error, at least with respect to what was agreed in the settlement, is that what occurred was a deliberate scheme (and, of course, it might have been a deliberate scheme, but there's no way the ethics board could prove that). It seemed deliberate at the time, and this aspect of the allegations was dealt with in the settlement. It seems to be a stretch to turn these errors into what is effectively a libel suit.

McCaffery clearly wants to send the message that there are consequences for the city's ethics board doing its job, even if imperfectly. He, and others certainly, want to make the board and its staff think twice before they act again during an election. Or, possibly, before they act again at all.

McCaffery's attorney made this clear in his statement to the press: "It's time for the empire to strike back." Does this make him the first attorney in history to admit he's representing Darth Vader, even metaphorically?

McCaffery's attorney better watch out. What he said sounds like just the sort of "frivolous, misleading, and false statement" that is grist for Mr. McCaffery's mill.

Robert Wechsler
Director of Research-Retired, City Ethics

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