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.

We let legislators work for bureaucrats, not taxpayers

So let’s get this straight. The Gov. Bobby Jindal Administration wants to privatize some aspects of mental health delivery, which it says will save money without reducing the quality of service. Then, a bill emerges that would essentially give a legislative panel a veto decision over these kinds of measures, and getting assent is a resolution that says the bureaucracy must present all sorts of justifying information and that it must take the welfare of displaced state workers into account in contracting for these operations.

Also, another Administration money-saving privatization effort involving the state’s self-insurance plan requiring legislative panel approval gets stalled because too many lower-level state employees may be thrown out of work or have salary reductions even if employed by the contractor. See a theme emerging?

And then another committee continues the legislative progress of a bill that would undo a fee increase authorized by the Legislature two decades ago but only very recently charged. Finally figured it out?

It’s the old, unwelcome practice of the Legislature – made up of part-timers with scattered expertise at best in a handful of policy areas – of micromanaging the running of the complexities of state government. It’s bad when legislators stick their noses into these kinds of administrative decisions after they already authorized by statute for the executive branch to go and do exactly the tasks it’s performing. While oversight is desirable, you can go overboard and one wonders at this level of scrutiny why Louisiana even bothers with having an executive branch if these busybodies – who apparently don’t have enough to do in their real full-time day jobs – involve themselves so much in the minutiae of administration.

But it’s far worse when the motivation for the meddling comes from a desire not to work for taxpayers, but for state employees. Legislators seem more concerned about state employees losing jobs or getting paid less than saving taxpayers tens of millions of dollars – unless you’re a state trooper, as reversing the fee decision could cause some of them to lose their jobs without that revenue.

Explaining this is the reality that often state employment gets concentrated around agencies and offices located in legislators’ districts, and state employment, unlike private sector employment, is something for which legislators can attempt to take credit that assists their chances at reelection or for reaching other elective positions. Transfer a state-run mental health facility and you don’t have that pool of jobs to tout or an opportunity to buy loyalty from those workers. Disperse a state-run program and those jobs diffuse out and away from the area, maybe out of state even – and who cares whether the state saves its citizens money as a result? (By contrast, state troopers are widely scattered and not really community-based.)

As Louisiana struggles with budgetary difficulties that increasingly are acknowledged in part as a result of the state’s inefficient fiscal structure, not to be lost in the analysis is the impact of political culture. Inefficiencies are tolerated because of political considerations by elected officials putting politics over principle. Yet ultimately this culture is allowed to persist because the people themselves that do the voting permit it. Blame the politicians for these attitudes, but don’t forget to blame the public because it gave them power. Changing the culture has to begin within the people first.

Fund money fight illuminates divisions on govt size

The arcane world of Louisiana budgeting is fueling conflict illuminating broader ideological visions of the size of government between the Louisiana House and Senate.

For the upcoming challenging budget year, both chambers agree a solution is to use $198 million of the Budget Stabilization Fund, about a quarter of its total, to balance the operating budget. The problem is, as both chambers must give at least two-thirds assent to this use, that the House leadership refuses to go along with it unless also a part of any appropriations would be an offsetting amount in non-recurring funds generated from a tax amnesty last year in addition to that portion already used in part as dictated in the statute to replenish the Fund.

The Senate leaders say this is not necessary, pointing to the produce of Act 226 of last year that specifically exempts any placing of funds in the BSF “until such time as the official forecast exceeds the actual collections of state general fund (direct) revenue for Fiscal Year 2008.” This will not happen next year and perhaps not for another couple of years, buttressing the Senate leadership’s view.

But Art. VII Sec. 10.3 of the Constitution addresses when the Fund is to receive money, and a constitutional provision takes precedence over statute. Supporting the House’s view is that last year’s change was authored by state Rep. Jim Fannin, who disagrees with the Senate’s interpretation.

Regardless of the admissibility of the obligation to deposit, political considerations define the issue as the fund’s tapping requires both chambers’ approval. At least on the Senate’s side, this has caused the rhetoric to deteriorate with one of its leaders on the issue, state Sen. Mike Michot, complaining the House irresponsibly wished to keep stashed away resources.

In essence any money plunked into the Fund will not be able to be spent for some time without amending the Constitution (although that effort is apace) because it is unlikely that a year-over-year decline in state revenues will occur next year to this one, a necessary condition to withdraw money. Making matters more complicated is that the Revenue Estimating Conference must declare the source money’s availability, either as recurring or not.

In other words, depending on the combination presented to the Conference, this money either could be spent on recurring items this year only, while the House’s strategy would make it unavailable for those purposes in future years. The Senate has plans for this tax amnesty money, to have it declared recurring for next year’s Medicaid expenditures. Hence the conflict over the size of government – the House wants to force more restraint than the Senate.

The Senate’s bargaining chip is that there would be $198 million more in cuts than presently budgeted for in the Legislature’s view (but not the governor’s). While the House can argue nothing happens unless its view is followed, the Senate can point out that something the House does not want, nothing to happen, is what it’s going to get unless it acquiesces.

The House head honchos can win this conflict if they spell out to the public why their interpretation is correct, forcing the Senate’s hand. Otherwise, the battle does become more shaped by public opinion, which may end up to the Senate’s advantage with all of the convoluted explanations about the process generally glazing eyes over but which can find focus on the fact that more cuts have to be endured. Even the most technical kinds of things eventually boil down to politics, especially in this state.

Sacred cows stay unmolested courtesy of LA House

Yesterday was a good day if you were a sacred cow in Louisiana politics, as the House and a committee of it whiffed on some money-saving bills that would increase efficiency in the use of taxpayer dollars.

The House Education Committee certainly did its part, defeating one bill, causing the (same) author to yank another, and barely passed the least helpful of his three. State Rep. Joe Harrison offered up HB 490 that would have capped the amount of Taylor Opportunity Program for Students scholarships at slightly less than the highest tuition now currently paid for any state school (LSU Baton Rouge) which went down to defeat, HB 905 that would have raised the GPA requirement to qualify from 2.5 to 3.0 for the baccalaureate awards which Harrison withdrew under fire, and his HB 994 which would require repayment of money from it by those who failed to meet its requirements – maintain a 2.5 GPA and take at least 12 hours a semester – during their first two years in the program which advanced.

The fundamental problem with TOPS, which the trio of bills was to have addressed systematically, is that with its low qualifying standards (for the four-year versions its ACT requirement is not even the national norm and with grade inflation in high schools these days most could get a 2.5 GPA in their sleep) it acts more as an entitlement which ends up paying too many marginal and/or indifferent students to go to college. When the 20 percent or so that fail to meet standards yearly do so, taxpayers have wasted money on paying for them and educators have wasted resources on that task.

Slush fund requests still alive but maybe not well

Since the Legislature is in session, it’s time for nongovernmental organization to come out of the woodwork with hands out begging money from the taxpayers of Louisiana, even when state money is tight as in this year. As usual, a large portion of them are peripheral to any real need, want to exist mostly if not exclusively on government money, are wacky, tardy, simply frivolous, or all of the above.

This week the House Appropriations Committee will give for now the green light to some, to which Green Light New Orleans is one of them. Perhaps the most ridiculous requester of the couple of hundred that have submitted, it wants taxpayers to cough up $25,000 for people to change light bulbs in its passion for a more energy-efficient world.

But there are a number of other head-scratchers:

Gallot's aspersions about Tucker lack credibility

Will the world ever find out the political subtext behind the rancor of state Rep. Rick Gallot and the object of his annoyance Speaker Jim Tucker? Because the conflict the two joined in last week, from the public statements they’ve made about it, especially from Gallot’s side makes little sense.

It flared into public view when a resolution of Gallot’s, HR 47 which has the very laudable goal of making vote changing after a roll-call vote has concluded difficult in the House, without Gallot’s assent got an amendment that, uniquely, would instruct the Speaker to take diversity into consideration in appointment of the House and Governmental Affairs Committee. That opposition got it defeated. Then a Tucker ally tried to amend it to place two additional members on the committee which Tucker insisted would be black Democrats. When it passed, Gallot withdrew the resolution.

This stems from an incident at the beginning of the session when Tucker abruptly took two Republicans off the House Appropriations Committee and replaced them with two Democrats, and then did the opposite with Governmental Affairs, claiming it had something to do with vote choices for Speaker Pro Tem. The effect was to take a 10-8 GOP advantage on that committee to make it 12-6, and this led some to speculate, as Gallot now appears to be doing openly, that Tucker wanted to stack the committee for redistricting purposes, making it more likely to draw the state legislative boundaries for next year’s elections to his Republican Party’s advantage to the detriment of Gallot’s Democrats.

But that motive wouldn’t make a whole lot of sense. First, forgotten in all of this is that Tucker actually took a GOP majority on Appropriations and made it into a minority by these moves. If Tucker was so partisan power-hungry, why wouldn’t he have arranged things to lose one majority on the most important committee in the House just to supplement an already-existing majority? After all, if there is party loyalty – and one would expect that for redistricting – with a majority already on Governmental Affairs, why would he need to boost it if this was his reason?

Also, the process itself already is under a microscope. While there is nothing unconstitutional about a partisan gerrymander, in Louisiana and over a dozen other states it’s much more difficult to do because of the substantial minority population that means any redistricting plan must undergo U.S. Justice Department scrutiny under the 1965 Voting Rights Act and its successors. Since majority black districts are overwhelmingly Democrat-registrant districts, it would be difficult to gerrymander substantially because that would show up in racial imbalances among districts that would threaten non-approval by Justice.

Among the more hyperbolic statements made by Gallot was that if Tucker would yank his chairmanship of the committee, he would go running to Justice to reveal the “corruption” that was going on. Which then begs the question, if there’s “corruption” going on, shouldn’t Gallot be talking to Justice already? That he hasn’t means his credibility on this issue suffers, including the claim that Tucker wants to stack the committee to play partisan redistricting games.

Finally, if in fact this was Tucker’s motive, what’s the harm in adding two members? If in Gallot’s mind the committee’s already stacked, then if Tucker didn’t appoint two more Democrats, what’s the difference, stacked is stacked? But if Tucker follows through, isn’t the situation better? So why oppose the amendment? Again, it calls into question Gallot’s thesis about Tucker.

I guess we really need to ask Gallot himself why he’s going off on this tangent, but his idea that Tucker has afoot a sinister plot doesn’t seem very convincing.