Ethics members still push flawed retrenchment idea

From the statements that continue to emanate from members of Louisiana’s Board of Ethics concerning the possibilities of political interference in ethics adjudication, you have to hope they bring the a higher level of information and logic to their roles on it.

Despite all evidence to the contrary, they keep pushing this fiction that allowing the Board itself to adjudicate cases, as was the case until a couple of years ago, contains less possibility for political interference than the present setup where administrative law judges with civil service protections deliberately designed to minimize political interference perform this function. The latest reiteration of this erroneous view comes from the Board Chairman Frank Simoneaux from a larger discussion about Board reform.

Simoneaux argues that another board to perform adjudication with political appointees should be created. This follows a model suggested by the Public Affairs Research Council and is one followed by several other states. But that only would create the same potential for political interference if the same method of selection is used.

The Board has it members selected for fixed terms directly separately by the governor, House, and Senate, from nominations produced by presidents of independent (that is, private) accredited universities in the state. Even if nominations come from sources outside of state government, this does not mean that they are nonpolitical (nor that their nominators cannot be pressured – there are plenty of ways the state can regulate these institutions) nor that those who get nominated do not bring their own agendas to their potential jobs that may align with certain political forces in the state. The selection process then clearly invites the chosen to get their jobs on the basis of politicians’ beliefs, if this is part of their agenda, based upon who would be most favorable to them in any potential ethics case.

Contrast this with the selection process for the judges. Several dozen of these civil servants (an example job description is here) are employed in the Division of Administrative Law at any given time. They must meet merit qualifications in the hiring process and after their probationary period have full civil service protections. After a couple of layers of bureaucracy, their ultimate agency boss is the DAL director who approves of the hire and is appointed by the governor for a fixed six-year term with Senate confirmation. Among their many potential duties are to adjudicate ethics cases.

To adjudicate in ethics cases, further insulation is present. Of the judges, annually seven are chosen randomly to hear cases that year. For each case, three of the seven are randomly chosen. Supervisors have no authority over them in these matters. And it is worth reaffirming that civil service regulations prohibit any outside interference with standards that make it impossible to cut pay and virtually impossible to fire them as means by which to pressure the kinds of decisions they make.

It’s worth restating because Simoneaux doesn’t appear to have a clue that these regulations exist, which is the only thing that can explain how he possibly could think there’s a greater chance of putting political pressure on ALJ’s than on Board members. Consider the following scenarios:

Under the present system, in order to exert political pressure on a decision, let’s say a governor wishes to do so, and thus makes contact with the DAL director. Subtly, his representative tells the director a case that has been sent over by the Board must be decided a certain way or he won’t reappoint the director.

First of all, given the long length of her term there’s a decent chance that governor won’t even be in office when the director’s term expires, and with Senate confirmation required the governor can’t even assure that nomination again is tantamount to retaining the job. Second, in order for the director even to have any influence over assigning the case to presumed “favorable” judges, she would have to go through an extraordinary amount of corrupt and hard-to-disguise behavior in (if it’s coming up the next year) rigging the selection of the seven judges and/or rigging the three-judge panel selection. Finally, in tandem with this or alternatively, she would have to undergo a very risky course of action which could result in legal action against her to try to pressure judges to decide a certain way when it is strictly prohibited by regulations with many recourses by employees so threatened.

Contrast this with a similar scenario under the old system, which is proposed as the selection method for this new adjudicatory panel. The governor’s agent calls up the Board member, subtly says he cannot expect to be reappointed later this term or after the governor’s reelection if a case gets decided a certain way … and that’s all there is to it. Instead of four layers of insulation (chain of command, two randomizations, regulations that protect), there are zero. And Simoneaux (and PAR) seriously believe the new system is more open to political manipulation? (Not to mention they cast aspersions on the integrity of the entire DAL which decides cases in many different areas besides ethics using procedures which are actually less insulated.)

Apparently, so does Board member Scott Schneider who at least tries to find a different rationale to argue the same point. He asserts that because making these decisions is part of a job, that the “livelihood” of the ALJ’s could be pressured, whereas less ability to pressure exists because the Board appointees do not serve in those positions as their employment.

Apart from the facts that, as demonstrated above, it is nearly impossible to exert political pressure on judges and it’s a bit unsettling to imply unintentionally that Board service is a hobby by comparison, Schneider’s argument also logically fails. Lack of being employed by an institution does not mean that other avenues to put pressure on a person serving for that institution do not exist. Board members are there obviously because they want to be, so any hint that they might not be pending a certain decision certainly is a nontrivial inducement that, by comparison with the protection afforded judges, has much more potential to influence a decision.

Simoneaux is right about one thing, that the Legislature is unlikely to revisit this aspect of ethics adjudication – because it’s a better system also currently used by several states. While some other changes would be beneficial, going backwards on this is not the answer.