The judges ruled that the Louisiana Board of Ethics could not appeal into the judicial system rulings made by the Ethics Adjudicatory Board – comprised on two panels with an alternate picked at random annually from administrative law judges. It cited state law that did not permit this kind of administrative appeal nor that granted the Board of Ethics this legal recourse. While state law does allow appeal of declaratory opinions, it does not for actual controversies decided.
However, ability to do this has been suggested by the Jindal Administration which, as the court confirmed, would require legal changes, both to the Administrative Procedures Act and to the Ethics Code. This salutary effect would be consistent with the prosecutorial role of the Board of Ethics as it deals with some matters that have penalties akin or even ore stringent than the criminal code.
This idea is consistent with the notion that ethics matters are quasi-criminal in nature. The maximum penalty in many cases is a $10,000 fine per violation – akin to some criminal penalties – and can be much higher if some kind of illicit gain was involved by the act amounts which already may be appealed to the First Circuit. Further, the Board of Ethics if it believes a criminal act has taken place can recommend criminal prosecution. Thus, it would seem logical that if an administrative court disagrees, the right of appeal by the board should be there. This especially should be an option now that the burden of proof is higher than it had been previously before when the Board of Ethics itself also adjudicated cases. It also should work both ways. Defendants should be able to appeal into the judiciary given the large penalties possible.
What to date has been an academic exercise now is reality. This session of the Legislature needs to make these adjustments for better quality justice and fairness in these matters.