“No matter how you slice and dice this, it all comes down to an issue of the amount of resources you put into an entity like this and how serious you are. You may have some great laws on the books, and maybe Louisiana’s statutes about ethics across the board and integrity of your public officials are very stringent. ... But if there is a lack of the enforcement mechanism and a lack of enforcement capacity behind those efforts, then those laws don’t really mean an awful lot.” Robert Smith, dean of the College of Liberal Arts & Social Science at Savannah State in Georgia
Five years into Gov. Bobby Jindal’s new system to police ethics in government, fewer politicians and other public officials are being deemed guilty of breaking nepotism, conflict-of-interest and other major ethics laws.
Some observers say the decrease in violations — a third fewer in the 2012 fiscal year compared with 2008, the last year of the old system — shows that the changes gummed up the works by making proceedings more like criminal prosecutions, with more lawyers, motions and delays.
“It all looks good, but the system doesn’t work towards enforcing ethics,” said Elliott Stonecipher, a former political adviser to Gov. Buddy Roemer and one-time consultant to Ethics Board members.
The numbers underline the point that the system was designed and funded by the very people the ethics system is supposed to police, said Stonecipher, who became a frequent critic of Jindal largely because of the move that changed the enforcement of the ethics code from what basically had been a regulatory function to an adversarial due process procedure.
Supporters of the changes argue the previous system was simply unfair.
Jindal says the changes in the ethics laws are working, arguing that numbers don’t tell the whole story.
“We have a better process in place,” the governor said. “The laws are clearer. There’s more transparency. The reforms have added due process. We have a much stronger system in place than before.”
Jindal campaigned in 2007 on correcting the perception that Louisiana is corrupt, saying the reputation of the state’s leaders as self-serving was “our biggest obstacle” to attracting businesses and improving the state’s quality of life. At his January 2008 inauguration — with four previous governors sitting nearby and a fifth sitting in prison — Jindal announced a special legislative session to repair the system, saying he wanted to create a “gold standard.”
About six weeks later, a package of bills pushed by Jindal had been approved by legislators with little public dissent. The new law established new ethics rules that require nearly every official, at nearly every level of government, to disclose personal finances to one degree or another. Legislators also expanded what lobbyists must report publicly about their activities and tightened how much elected officials can receive in the form of meals and entertainment paid for by others.
At the same time, Louisiana legislators changed the system by which officials were investigated and judged when it comes to breaking government ethics laws. Those laws include rules on hiring or giving government contracts to family members, conflicts of interest involving governmental work and private work, and receiving gifts.
The new system at work
The changes ended the decades-old practice of the Louisiana Board of Ethics playing prosecutor by bringing charges as well acting as judge by determining guilt or innocence. The new law gives the job of judging the Ethics Board’s charges to panels of administrative law judges, known as the Ethics Adjudicatory Board. The new law also requires more evidence to prove cases.
After the Legislature passed Jindal’s package of ethics laws in 2008, the number of cases sent to hearing slowed, with only two resolved in the first year as legal issues and other growing pains hit the reconfigured system.
Prior to 2008, the Board of Ethics kept few statistics, and some issues are handled differently now than under the old system. The changes created an opportunity for statistically more cases because personal financial disclosures are part of the ethics code.
But a comparison can be made of violations of the code involving the more traditional ethics allegations, such as nepotism and conflict of interest.
In the 2008 fiscal year — the last full year under the old system, which covers the 12 months ending on June 30, 2008 — 58 public servants were either found guilty at a hearing or agreed they violated the code in a “consent opinion” ending the case against them. In the 2013 fiscal year, the number stood at 39 people.
In each year since the Ethics Adjudicatory Board took over, there have been fewer “consent opinions,” in which the accused admits wrongdoing and usually pays a fine.
In 2008, 50 officials entered into consent opinions, compared to 25 during 2013.
The number of hearings has risen slightly. In 2013, 16 cases were heard by the administrative law judges; officials were found guilty of violations in 14 of those hearings. The Ethics Board in 2008 held 13 hearings and found against the accused in eight of those cases.
Robert Travis Scott, president of the public policy group Louisiana Public Affairs Research Council, says the new system is “more lawyered.”
“There’s more need for lawyers, legal maneuvering,” Scott said.
Enforcement lax countrywide
Other states handle enforcement differently, but in many ways, their mechanisms are very similar to how Louisiana operates, says Robert Smith, dean of the College of Liberal Arts & Social Science at Savannah State in Georgia. Smith is widely quoted and consulted for his expertise about the organization and effectiveness of state ethics commissions.
In most states, the more serious infractions are investigated by staff, then packaged and presented to law enforcement, a local district attorney’s office, or the state’s attorney general’s office for prosecution in the courts, he said.
The mechanism itself is not as important as intent, he said, adding that a drop in guilty findings probably isn’t the fault of an ethics board’s staff. In addition to investigating allegations that government officials are improperly taking advantage of their positions, most commission staffs in the country also must file and review tens of thousands of financial disclosures, as well as educate thousands of officeholders of the latest policies.
“No matter how you slice and dice this, it all comes down to an issue of the amount of resources you put into an entity like this and how serious you are,” Smith said. “You may have some great laws on the books, and maybe Louisiana’s statutes about ethics across the board and integrity of your public officials are very stringent. ... But if there is a lack of the enforcement mechanism and a lack of enforcement capacity behind those efforts, then those laws don’t really mean an awful lot.”
Writing in 2011, Leslie Merritt, of the Foundation for Ethics in Public Service, was far more direct about the ineffectiveness of ethics commissions around the country: “Unfortunately, while these ethics commissions look good on paper and sound good in a press release, more often than not, their bark is louder their bite.”
The ideas for many of the new laws passed in Louisiana came after consultation with the officials at the Center for Public Integrity, a Washington, D.C.-based nonprofit investigative news organization. The center praised Jindal in 2008 for some of the revamps.
Jindal then said on television, “Louisiana is now on the top of the list according to the Center for Public Integrity.”
The Center quickly responded, saying Jindal had exaggerated. “The center has never said that Louisiana ethics law is ‘on top of the list.’ It’s good — don’t get us wrong — but, sorry, Guv, we can’t give you the top ranking.”
Louisiana received good grades in March 2012 for some of its laws, such as internal auditing and state budget projects, but Ds for enforcement in a national comparison of ethics laws and structures. The center coordinated the nationwide study along with other groups.
Jindal’s chief of staff at the time, Stephen Waguespack, said the administration would work with good-government groups to “get more teeth into” the enforcement.
Proponents of the new dual system argue that split prosecution and judicial functions ensure “due process” rights.
During the 2008 debate, state Sen. Bob Kostelka, a Monroe Republican who helped handle Jindal’s legislation, said the Ethics Board needed to shift from an administrative body to one more reflective of competitive judicial proceedings seen in civil and criminal courts.
Terry Ryder, who has provided legal advice for four governors and monitors Ethics Board activities, agrees with that concept.
“There’s no question in my mind that the change in 2008 to separate the roles is a much fairer situation than what was in place before,” Ryder said. “The courts have ruled in the past, not only must there be due process, but confidence that someone was getting due process.”
Baton Rouge attorney Gray Sexton long ran the state ethics agency but now represents people accused of violating the code. Once a vocal critic of how the Legislature separated the prosecution and judgment functions, Sexton now says the bifurcated system is fundamentally fair and the law judges are thoughtful.
Under the old system, some elected officials complained that their reputations were tarnished simply by having the Ethics Board raise the question of possible impropriety.
Under the new system, generally the Ethics Board staff handles the police work of investigating possible violations. The Ethics Board decides whether to pursue charges. The evidence is presented to the Ethics Adjudicatory Board, where administrative law judges decide the issue.
“Clearly the Legislature wanted a group of trial judges who understand administrative due process and also is not beholden to the Board of Ethics,” said Ann Wise, who heads the state office that provides the judges who sit on the Ethics Adjudicatory Board. “Once they get a decision from the (board), they can’t say this was some kind of inside job, somebody had a personal vendetta against me.”
The Ethics Board’s standard of proof in bringing cases also changed from “a preponderance of the evidence” to what some said was the more difficult to prove guideline of “clear and convincing” evidence. Some people predicted prolonged litigation over what the new standard meant. The lawsuits have not been forthcoming.
PAR’s Scott said despite the letter of the law, the old Ethics Board was, in practice, already using the higher standard of evidence.
“Has it drastically changed the number of charges filed? I don’t think so,” said Kathleen Allen, who, as ethics agency administrator, is in charge of the prosecutorial functions under the new system.
Scott and other observers complain the system is now bogged down with motions, counter-motions and procedural steps that create lengthy delays in the resolution of cases.
The Ethics Adjudicatory Board had 227 cases on its docket in the fiscal year that ended June 30. The judges held 96 hearings and 587 prehearing conferences, resulting in 1,041 decisions, mostly on various motions common in a court of law but typically much rarer in an administrative hearing setting.
Sexton shares some of those time concerns, saying the Legislature never envisioned a process that would take two to three years and the expenditure of thousands of dollars as a case winds its way from charges to multiple hearings on motions, counter-motions and conference calls before a final hearing.
“I just don’t know whether there is a dedication of sufficient resources, so cases can be decided in an expedited way, as envisioned by the Legislature,” Sexton said.
Allen said some of the procedures could be streamlined to avoid litigation and “a long, drawn-out process.”
The ethics law revamp shortened the length of time allowed between starting an investigation and bringing charges. Allen said it also cut short the time available to negotiate settlement of cases prior to charges being filed, a common Ethics Board practice both before and after the bifurcated system was established.
“Now with the time limit — one year instead of two — there is not the time to negotiate a settlement before charges are filed,” Allen said.
Also, questions linger over what kinds of evidence — including the identities of whistle-blowers — need to be disclosed to alleged violators preparing their defense.
“It’s a complaint-driven agency,” former Ethics Board Vice Chairman Scott Schneider said. “You don’t want to create a system that creates a chilling effect where people don’t come forth. We do need to figure a way to protect the anonymity of people coming forth, while at the same time, giving people the opportunity to defend themselves.”
So far, the Ethics Adjudicatory Board judges have not required informants to be disclosed, Allen said. Other disputed information has been turned over under seal for the judges to determine whether it is essential for preparing a defense.
The Ethics Board has asked the Jindal administration and the Legislature to provide clarity in what’s off-limits.
Ethics Board Chairman Blake Monrose, of Lafayette, said the new system will continue to evolve as the courts and the Legislature make modifications.
Jindal says he’s “absolutely” open to considering more recommendations from the Ethics Board and others, adding that the system can still be improved upon.
“You don’t make a bunch of reforms and think you are permanently done,” he said.