Ethics Board, not judge panel, to blame for odd decision

A controversial decision on campaign finance illustrates exactly why the recent reforms to the process were desperately needed, and what further reforms are necessary.

Until the past couple of years, the Louisiana Board of Ethics acted as prosecutor, judge, and jury concerning all allegations of political ethics violations, including campaign finance matters. This invited several problems: members of the board were not required to have any legal background, so they had no expertise in these matters; thus, they were unduly dependent upon their staff for advice that could sway decisions potentially in politicized directions; members were political appointees directly by the governor and each chamber of the Legislature and thereby liable to be pressured by these politicians; fairness for the accused was questionable with the Board acting both as prosecutor and judge even if no intended bias was present.

Then, legal changes shifted the adjudication process into the hands of the state’s Division of Administrative Law. Now, charges are heard by trained lawyers with administrative law experience who are civil servants and are protected from political interference, chosen at random annually to sit as a potential judges and chosen randomly from among this pool to hear cases. The only political appointee involved is their superior several layers up who is chosen by the governor with Senate assent for a fixed six-year term.

But one suggestion for continued improvement of the system would be to allow the Board of Ethics, like any prosecutor, to be able to appeal cases, and an Apr. 24 decision by an EAB added fuel to that fire – although, interestingly, in this instance it appears to back the desire not because of a strange decision but because the Board itself dropped the ball. In the matter of the Louisiana Justice Fund, outrage was sparked when an EAB ruled that this organization, a creature of the Democratic Attorney Generals Association Inc. which ran highly negative ads about state Attorney General Republican candidate Royal Alexander in the 2007 race, did not knowingly violate law when they failed to report the expenditure in several ways.

Alexander (a former law judge himself) criticized the decision, noting, if anybody, that a group of a bunch of high-profile lawyers ought to be able to figure out Louisiana law in this instance. However, the EAB reviewed the evidence and determined that while the ad in question did represent campaign speech and was covered, the entity was something that had to file, and the entity was in violation, that the entity did not have to pay a penalty if the reports were not filed by the end of last Friday (no record of the filing is evident but the Louisiana Ethics Administration Program may not have posted it yet).

The EAB was explicit in why it would not impose penalties immediately for the past offense: “There was no evidence presented by the Board of Ethics as to LJF’s knowledge that it was required to file the reports,” and then goes into a detailed footnote of why it concluded that, according to the vagaries of Louisiana statute, the Board had not met this burden of proof. In fact, the Board’s staff, it was noted, called no witnesses, a process that could have revealed that there was knowledge of these reporting requirements.

So understand that the reason for high dudgeon from various Board members is to hide the embarrassing fact they sabotaged their own case by not being thorough – a lacking which has been intimated from the results of others previous cases as well. This should not be surprising that, with the agency having been all of prosecutor, judge, and jury for so long, a true adversarial process had been unavailable to sharpen the agency’s skills in providing compelling cases to neutral third parties. And it points to the fact that the quality of decisions as a result of the change probably therefore have improved (as a point of reference, compare the sophistication of the decision in this case as to that of a high-profile case in the recent past decided by the Board).

Nevertheless, even if somebody is right for the wrong reason, they’re still right, in this instance that this incident supports the idea of appeal authority should be granted to the Board. Particularly where a law judge panel is going to rule on the substance of statute – as it did in parsing Louisiana law to determine the standard for “knowingly” – such a case deserves to enter into the regular state judiciary.

Legislation to do this as well as to lengthen the terms of the administrative law judges assigned to hear ethics matters (to allow them to develop more expertise) in these cases sits within the Legislature this session. The amending process can be used to define better “knowingly” so as to keep that out of the hands of judges of any kind in the first place. So far the bills (HB 1179 and HB 1202) granting appeal power gather dust. Such changes deserve to pass into law this session that, besides creating better jurisprudence, will save the Board from its own shortcomings.