by Clancy DuBos
Four leading good government groups have come out, almost simultaneously, urging lawmakers to put the brakes on Gov. Bobby Jindals proposal to strip the Louisiana Ethics Commission of its adjudicatory authority.
House Bill 41, as initially proposed by the Jindal Administration, would take away the Ethics Boards authority to hear and decide cases brought by its staff. Instead, if Jindal has his way, the board would merely become an investigative body, and administrative law judges who are appointed by the executive branch would hear the cases, decide if any violations occurred, and determine what penalties, if any, to impose. This is a major change in policy and law.
For decades, the Louisiana Ethics Commission has had the authority to bring charges and hear cases and impose penalties. Its an imperfect system, to be sure, and it was even less perfect when Gray Sexton was at the helm of the Ethics Board. Now that Sexton is gone, things are said to be improving, but many still believe that one board should not serve as investigator, prosecutor, judge, jury and executioner. Interestingly, no one was really complaining about that during the campaign and even Jindals blue-ribbon ethics task force declined to recommend any such changes in its report to the Jindal Transition Team.
All of this makes the timing of this proposal right after the Ethics Board has cited the Jindal campaign for a campaign finance disclosure violation highly suspect. In effect, it would transfer the jurisdiction over the Jindal campaign finance law violation from the Ethics Board to the Jindal Administration.
The four good government groups urging Jindal to slow down are the League of Women Voters of Louisiana, Common Cause, the Council for A Better Louisiana (CABL) and the Public Affairs Research Council (PAR). All of the criticisms are on point, but PARs offers the most detailed analysis of whats right and wrong with both the current system and Jindals proposal.
Below are their letters to the public and/or Jindal on this matter, starting with a joint letter from the League and Common Cause.
Dear Community Leaders and Concerned Citizens:
While Governor Jindal has called the legislature into special session to push his ethics package, passage of one of his bills would be a giant step backwards. HB41 would gut the independent Ethics Boards authority to decide on ethics charges and give it to the so-called administrative law judges selected by an appointee of the governor.
This bill was not part of Gov Jindals campaign platform, was not considered by his Ethics Advisory Committee, was slipped in the special session call at the last minute, was not made available to the public until its prefiling on the Saturday before the special session was opened on Sunday, and was approved on a continuing fast track by the House Committee on the following Monday. Despite the plea from the Ethics Board that there are serious constitutional and other problems with the bill, and despite requests, by at least two good government organizations, to the Governors Office for further study the House approved the measure last Friday. The legislative website at www.legis.state.la.us has links on the opening page to all session information.
The bills supporters say HB41 is necessary to prevent the Ethics Board acting as both prosecutor and jury. However, that purpose can be accomplished in a number of different ways without having the governor appoint the person who selects the hearing officer. Yet, for some unexplained reason, the governors office insists that its approach is the only one and it needs to be acted upon immediately.
If you are concerned about this bill you can, of course, exercise your constitutional right to contact the Governors office (phone 225-342-0991 or fax 225-342-7099 or visit the governors website at http://louisiana.gov) and your legislators, whose identity and contact information can be found on online at http://www.legis.state.la.us/ . Key legislators are the chair and members of the Senate and Governmental Affairs Committee whose identity and contact information and contact information can be found online at http://senate.legis.state.la.us/Senate&Government/Assignments.asp
Sharing the Spirit of League, Sincerely,
Jean Armstrong and Wendell G. Lindsay, Jr.
Here is CABL president Barry Erwins letter of concern to Stephen Waguespack, Jindals deputy chief of staff, which Erwin sent last week:
On behalf of all of us at CABL I want to commend you and the administration for the comprehensive reform package that the governor has crafted. We are very encouraged to see the many major items that are moving through the legislative process and are confident Louisiana will emerge with a strong group of reforms.
I did want to follow up on our prior conversation and let you know that we do have some concerns about some of the changes proposed in HB 41. And while we are not opposed to the bill per se, we respectfully request that the administration consider delaying its consideration until the regular session in order to allow a more thorough review of this proposal and the issue it is intended to correct. A few points to consider:
1. This would be a major change in the very core mission of the Ethics Board. It would, in essence, remove from the Board the primary role for which it was created.
2. While almost every other item in the reform package has been discussed and debated for some period of time, details of this proposal have only been available for a very few days. The approach it suggests may very well be acceptable, but we do believe there should be an opportunity to more thoroughly vet and analyze such a significant change in the core role of the Ethics Board.
3. We believe there is real value in having the important judicial function of the
Ethics Administration handled by a volunteer Board of citizens chosen through a rigorous selection process. While an individual Administrative Law Judge can certainly render a verdict in an ethics case, we believe having a body of judges determine the outcome of a case builds public confidence and makes the process more fair and more difficult to influence. There is also value in the institutional knowledge gained by the Board members in overseeing numerous cases in this specialized field and the fact that they can deliberate as a group in deciding cases.
4. We are aware of the potential conflicts with the current process but believe we should first consider remedies that preserve the concept of a citizen Board as adjudicators of ethics violations before moving to a process where individual state employees would be asked to make decisions impacting high-ranking elected and appointed officials.
5. While there may have been issues with the Ethics Administration in the past, it is now under new leadership. The new Ethics Administrator appears to have strong credentials. The Board leadership in working to review and improve operations in the office has been impressive. We believe it would be of value to have their input based on years of experience in this arena as well as that of others who have been close to the process before final decisions are made by the Legislature.
Please understand, we are open to new ideas and have no problem with bold changes in many aspects of state government. We are also acutely aware of the need for a fair process for deciding ethics cases. That is paramount.
But we do believe such a significant change in the core function of the Ethics Board should be made only after appropriate time for deliberation and consideration of multiple approaches that would ensure fair outcomes for all public servants. It is important that we move quickly to put many of the governors ethics reforms in place. But in the case of
HB 41 it is important that we move at a very deliberate pace to assure that the changes to the Ethics Board that legislators have suggested to you are, in fact, in the best interests of ethics administration in Louisiana.
Again, congratulations on the tremendous start for this special session. I look forward to your input and working with you on the many ethics reforms that will improve our state.
And here is PARs press release stating its opposition to HB41 as conceived by the administration:
The administration proposal to insert administrative law judges (ALJs) into the process of ruling on ethics violations would dilute the existing power of the Board of Ethics. While most of the ethics reform package is in line with previous PAR recommendations, this one raises some troubling questions that require additional research. There should be no rush during this special session to change the power and authority of the Board of Ethics.
The ethics board and staff currently share responsibility for all phases (initiation of an investigation, investigation, prosecution and judgment) of deciding guilt or innocence in an ethics case. This does seem to create inherent conflicts of interest that could lead to biased decisions, despite the fact that several courts have upheld the due process of the Board of Ethics and no one is questioning the fairness of the actual decisions rendered by the board only the potential for unfairness. Five proposals have been suggested as ways to separate the judgment and penalty phases from other phases of the process to avoid this conflict. The leading proposal, to incorporate ALJs, has passed the House and has the support of the governor.
The Board of Ethics has asserted that the ALJ solution could unconstitutionally usurp its responsibility to hear and decide ethics violations. As an alternative, the board has presented its own solution. The board would split itself into two panels, one to perform the investigatory/charging duties and the other to perform adjudicatory functions. Each of the 11 members would be assigned only to a single panel for each complaint. Similarly, the ethics administration staff would be separated by function, one to perform the advisory/writing duties and the other to perform the investigatory and prosecutorial duties. This would prevent cross-influence between staff who advise the panel in adjudication decisions and staff who investigate complaints and present matters to a different adjudicatory panel.
In addition to the solutions proposed by the governors administration and the Board of Ethics, several other alternatives have been proposed, including:
Using elected district court judges for the hearing and penalty phases;
Using retired judges for the hearing and penalty phases;
Splitting the current ethics administrators job into two positions: an administrator with management responsibilities and an executive counsel to advise the board. The executive counsel would be shielded procedurally from developing an interest in the outcome of cases.
Each approach has costs and benefits for the efficiency, independence and accountability of the process that must be weighed carefully. The most closely examined of the approaches has been the ALJ alternative, though it has only been a part of the public discourse for a few weeks. While improvements to the ethics board enforcement process were discussed as a part of the Jindal transition advisory council on ethics meetings, the specific use of ALJs to render judgment was not a part of either the Jindal campaign platform or the recommendations of the ethics advisory council.
Some argue that the ALJ approach would create a new opportunity for political pressure on ethics decisions, because the ALJs are selected by a gubernatorial appointee. A variety of accountability safeguards are in place to foster the integrity and independence of the ALJ decisions. The Division of Administrative Law is a centralized panel of ALJs, which conducts impartial hearings for aggrieved citizens when state agencies take actions against them. Upon completion of a hearing, an ALJ renders a decision regarding the dispute between the parties. Citizens may appeal an ALJ decision to the courts should they disagree with the ruling, but state agencies have no right of appeal. This process has been reviewed by the Supreme Court of Louisiana and found to be constitutionally sound. ALJ hearings are generally open to the public.
As proposed, the new ALJ process would grant the right of appeal only to the defendant. The Board of Ethics would have no right to appeal a judgment by the ALJ. Defendants, however, would be entitled to appeal to the First Circuit Court of Appeals. The ethics board would have its final judgment authority stripped, yet would not be granted a final right to appeal the judgment imposed by an outside entity. Not having the right to appeal might make sense for many state agencies involved in administrative hearings, but it may not make sense for the ethics administration. The states role as enforcer of the code of ethics should not be seen as impotent. The unintended consequences of well-meaning reform could lead to this perception.
Of the five proposals being considered, only the internal reorganization proposed by the Board of Ethics would not dilute the strength and authority of the board. The other proposals could potentially weaken the gains to be made by passage of the entire package of more stringent ethics requirements, because they could weaken citizen confidence in the ability of the board to interpret and enforce the law. Thus far, however, there has been little opportunity for a thorough, substantive discussion of any of the proposals. More time should be given to explore alternatives fully and structure a system that will best serve the citizens of Louisiana.