Until the past couple of years, the Board was prosecutor, judge, jury, and executioner of all matters dealing with campaign finance, financial reporting requirements of government officials and lobbyists, and ethics questions of job performance in an elective or appointive office. Then, a statutory change removed its adjudicatory power. Overall, this was a good thing because it put decisions in the hands of trained, impartial civil servants with protections against political interference rather than inexpert political appointees charged with ruling on potentially the people who appointed them. The decision whether to prosecute on all matters remained in the hands of the Board, but it also continued to issue rulings on campaign finance violations while forwarding other matters to the new Ethics Adjudication Boards for action.
However, in a court case dealing with prosecution and adjudication of a violator of campaign finance regulations, where a former candidate failed to file required documents by their legal due date, the judge ruled that if a defendant challenged the punishment, even though the facts were clear about the case – the reports did not show up by the due date – administrative law judges still would have to have a trial about it. This was contrary to the state’s argument that, in these campaign finance matters, the Board served merely a procedural function, ratifying that reports were not filed when they were supposed to be and acting on information in them, justifying the Board’s continuing adjudication on those kinds of matters.
Yet perhaps what tipped the scales in favor of the ruling was the Board also could make exceptions. Even if a clear violation occurred, it had the power to waive penalties at its discretion. This would moot the argument that failure to file on time was open-and-shut, because not all instances of it drew a penalty. If let unchallenged to a higher court, which the Board has not yet decided whether this should be pursued, this discretionary authority now passes to the Ethics Adjudication Boards.
This decision, should it be unchallenged or upheld, begs reassessment of the Board. It has many powers, but practically all of them now remaining are really administrative. About the only ones that have any non-trivial policy import are whether to investigate resumed violations and discretion to issue advisory opinions about the ethics code. But for these kinds of matters it leans heavily on staff, so why not simply make these staff choices? The executive power of the Board could be placed in the hands of its administrator who would make the final call, as occurs in the Attorney General’s office. Legal changes could increase the administrator’s independence from political considerations.
By divesting the state of the Board, it would remove an increasingly irrelevant set of political appointees, save money, and remove a layer of bureaucracy. If Louisiana, by legislative and/or judicial fiat, has started the process of making its ethics enforcement and adjudication more professional, it should just go all the way.