The big cats are grinning. If you think of Louisiana politics as a large-animal circus act, with the state ethics board as the lion tamer, then the tamer now holds a whip made of licorice. When lawmakers passed a set of new ethics laws in February, they also raised significantly the standard of evidence needed to rule against elected officials accused of ethics or campaign finance violations. Instead of cracking down on violators and cleaning up Louisiana's image, the higher burden of proof makes it more difficult to punish unethical politicians and easier for them to flout the law. This must change. Lawmakers and Gov. Bobby Jindal recently basked in the spotlight of Louisiana's new ethics laws. Indeed, some of the new laws approach the so-called "gold standard" of ethics reform, such as full financial disclosure and bans on state contracts. But, even as the public cheered, the proverbial claws were out, gutting enforcement of those new laws by requiring a higher burden of proof. Here's what happened:
Previously, to rule against a public official, the ethics board needed "substantial evidence" that a rule or law had been violated. What is substantial evidence? According to Black's Law Dictionary, it is "such evidence that a reasonable mind might accept as adequate to support a conclusion." In effect, it means something to hang one's hat on and it is the standard most often used by administrative bodies such as the ethics board. "It is more than a mere scintilla," the law dictionary adds, and in Louisiana, it has more or less equated to the civil trial standard of "preponderance of evidence," which means most of the evidence supports the board's conclusion.
In the February special session, one of Jindal's allies, Sen. Bob Kostelka, R-Monroe, proposed a seemingly innocuous amendment to House Bill 41, which dealt with enforcement of the new ethics laws. The amendment, which senators adopted and Gov. Jindal signed into law, was anything but innocuous. It changed the evidence standard from "substantial" to "clear and convincing." Kostelka, a former state judge, understood well the consequences of his amendment. "Clear and convincing evidence" requires much more than a mere preponderance or majority of evidence. It effectively requires the ethics board to meet the much higher "beyond a reasonable doubt" standard used in criminal trials.
That change was a huge mistake. It guts the so-called progress that our new ethics laws supposedly made. What good are tough laws if they cannot be enforced?
Ethics investigators now have to dig deeper just to bring a charge against a wayward politician, much like federal and state prosecutors have to do in criminal cases. Ethics hearings are not criminal cases, however; they are administrative proceedings, and the standard of evidence in such cases should be easier to meet than in criminal matters. There's another reason for that difference, one that goes to the heart of why we have ethics laws in the first place: the need to instill public trust and accountability. Ethics require more than just not taking bribes; they impose an affirmative duty on public officials to put the public interest first and to conduct themselves in a manner that avoids even the appearance of impropriety or conflicts of interest. The Kostelka amendment is diametrically opposed to that notion.
In his defense, Kostelka told Gambit Weekly last week that there was "nothing funny" about his amendment and that the old standard "wasn't enough for violating a standard of ethics." We couldn't disagree more.
Nor are we overstating the case. Richard Sherburne, the new head of the Louisiana Board of Ethics, predicts, "There will be people who will commit ethical violations that, because of that change, we will not be able to collect sufficient admissible evidence for prosecution." That must change, and now. Lawmakers should immediately amend the new ethics enforcement law and reinstate the "substantial evidence" rule and citizens should give them hell until the lion tamers once again have a real whip in their hands.
Scalise for Congress
This Saturday, May 3, voters in the First Congressional District will elect a new member of Congress to represent parts of Orleans, Jefferson and St. Charles, and all of St. Tammany, Washington and Tangipahoa parishes. For this seat, we recommend state Sen. Steve Scalise.
While we do not agree with many of Sen. Scalise's positions on social issues, we like his grasp of the area's No. 1 concern: hurricane and flood protection. His ideas for reforming and overseeing the Army Corps of Engineers are sound, and his philosophy is in tune with that of most voters in the district. His tenure in the state Legislature also has taught him the importance of forming coalitions to get things done.