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?<br>
<br>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
Earlier this month, according to <a href="http://www.philly.com/philly/news/20091207_McCaffery_suing_Ethics_Board…; target="”_blank”">an
article
on
philly.com</a>, 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."<br>
<br>
Considering that Dan McCaffery entered into a <a href="http://www.phila.gov/ethicsboard/pdfs/McCaffrey_Settlement_Agreement.pd…; target="”_blank”">settlement
agreement</a> 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.<br>
<br>
It's interesting to look at what he did and admitted to, although he
did not
admit to having done it intentionally. <br>
<br>
According to the <a href="http://www.phila.gov/ethicsboard/pdfs/McCaffrey_Settlement_Agreement.pd…; target="”_blank”">settlement
agreement</a>, 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.<br>
<br>
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.<br>
<br>
There are some errors in the ethics board's <a href="http://media.philly.com/documents/Ethics+Bd+Press+Release+McCaffery.pdf…; target="”_blank”">press
release</a>. 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.<br>
<br>
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.<br>
<br>
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?<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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