The Governor’s Race: Ethics

Associated Press file photo -- Gov. Bobby Jindal is seen in the September 2011 file photo. Show caption
Associated Press file photo -- Gov. Bobby Jindal is seen in the September 2011 file photo.

Jindal’s ethics efforts weighed

This is the third in a series of reports looking at key issues in advance of the Oct. 22 election.

Campaigning for office four years ago, Gov. Bobby Jindal promised to make Louisiana a national model for government ethics laws and enforcement.

“By any measuring stick, the last four years have been a tremendous success in revising our ethics system, ethics enforcement and improved our reputation in the state and nationally in cracking down on corruption,” said Stephen Waguespack, Jindal’s chief of staff. “We have turned the Louisiana story around.”

Jindal declined interview requests on the status of ethics laws as well as whether he plans to offer more legislation if he, as expected, wins a second term.

But some who monitor ethics laws said that while improvements have been made, the job is not finished.

For example, they say one of the key changes affecting operations of the Louisiana Board of Ethics has muddied the waters when it comes to enforcement of laws.

“We want an ethics regulation that increases public confidence in the system,” said Public Affairs Research Council President Robert Travis Scott. “An average citizen right now may have a lot of questions whether the system has run into some problems.”

PAR, a nonprofit membership group that researches state government operations and policies, has launched an in-depth look into the law to see what fixes are needed, Scott said.

A review of Jindal’s 2007 campaign promises shows some have fallen by the wayside, including a pledge to reduce the number of exceptions to conflict of interest and nepotism laws.

Jindal signed into law exceptions that gave special treatment to some legislators and their relatives as well as a prominent district attorney.

Jindal made ethics reform the cornerstone of his 2007 governor’s campaign.

Within months of taking office, Jindal called a special legislative session to pass what he called “comprehensive ethics reform.”

As a result of that session laws were changed:

• The system for ethics law enforcement changed as the Louisiana Board of Ethics’ role became one of investigator and prosecutor. The judicial function — deciding if an infraction had occurred — was moved to panels of administrative law judges, called the Ethics Adjudicatory Boards.

At the time, Jindal said too much power had been invested in the Ethics Board, infringing upon the due process rights of the accused.

• Officials at all levels of government — both elected and appointed — are required to disclose at least some of their personal finances.

Jindal had sought to require disclosure by legislators and statewide officials, but the Louisiana Legislature broadened the new law’s scope to include almost every elected official and a lot of those who were appointed. Louisiana rose from a near cellar ranking to first in the nation for financial disclosure of state legislators in a Center for Public Integrity survey.

• Legislators, their spouses and companies can no longer do business with the state.

• Lobbyists must disclose more about their dealings with legislative and executive branches of government.

Campaign cornerstone

While applauding disclosure requirements, officials with PAR and Council for a Better Louisiana say there’s no requirement that the reports be audited for truthfulness — something both consider a short-coming.

CABL is a nonprofit membership organization that lobbies ethics, education and other governmental issues.

CABL president Barry Erwin said, “We do pretty well with the reporting aspect, but there’s not much oversight to see if things are accurate.”

Random auditing would act as a deterrent to people trying to deliberately file inaccurate disclosure reports, he said. About 20 states have such a requirement, he said.

PAR noted the omission in a 2010 report reviewing ethics law changes and sticks by the recommendation for random auditing of the documents, Scott said.

Nearly 31,000 disclosure reports were filed with the ethics agency last fiscal year as the law broadening who has to report becomes more fully implemented, according to Ethics Board statistics.

During the past two years, the Ethics Board has suggested to the governor and the Legislature that they consider procedures for audits. Neither took action.

Erwin also noted that there is no requirement for the electronic filing of reports, which needlessly delays public access to the documents.

The law establishing a new ethics enforcement structure has its problems, according to the ethics overseers.

“There’s still some confusion in the law about who is in charge of what and who has what authority” between the Ethics Board and the Ethics Adjudicatory Board, which is now deciding whether violations occurred, Erwin said. “That needs to be cleared up.”

The confusion has led to lawsuits.

“If there are reasons you can sue or file lawsuits on these things that take the resources and time away (from ethics staff), it effectively takes the teeth out of the ability to enforce the law and it defeats the purpose,” said Erwin.

Ethics Board chairman Frank Simoneaux recalled numerous instances in the new law that is not clear about which board is talking — the Ethics Board or new Ethics Adjudicatory Board.

In addition, the Ethics Board has no legal recourse when it disagrees with the EAB’s interpretation of laws, which has happened on more than one occasion, Simoneaux said.

“The Ethics Board should have a right to appeal if it believes the EAB decision is wrong on findings of facts or conclusions of law,” Simoneaux said.

“That, in essence, makes the EAB the final arbiter of what the law is, rather than a court, unless the respondent (accused) decides to appeal.”

Simoneaux said the respondent who has been accused of breaking a rule does not represent the best interest of the public.

Erwin said CABL also is not a big fan of turning over the judicial function to the EAB — composed of state employees whose boss is an unclassified employee appointed by the governor.

“We want to get back to what the Constitution envisioned — a citizen board of people adjudicating these issues,” Erwin said.

Waguespack said the administration is open to ideas to improve the system. Jindal would find a legislator to sponsor a bill that would allow the Ethics Board limited appeal rights, he said.

Exceptions

Both PAR and CABL object to the number of exceptions that remain in Louisiana ethics laws that allows conduct that would otherwise be banned. The Ethics Board has submitted recommendations to the Legislature and the Jindal administration aimed at reducing their numbers, but no action has been taken.

In Jindal’s “Ethics Reform: Ending Corruption,” which outlines his promises during the 2007 campaign, the then-candidate stated that he would make it more difficult for the Legislature to pass exceptions to existing laws by requiring a “super-majority” vote. No such legislation was approved.

In addition, candidate Jindal said he would undertake a review of the 100-plus exceptions and eliminate any “that does not serve the best interests of the public.”

Jindal signed bills that were passed by the Louisiana Legislature to allow Winnsboro state Rep. Noble Ellington’s wife be his legislative aide; to allow the son-in-law of state Sen. John Smith, of Leesville, to lobby the Louisiana Legislature; to allow the business of state Rep. Rickey Nowlin, of Natchitoches, to continue working on contracts with some government agencies; and to allow Orleans Parish District Attorney Leon Cannizaro to hire his daughter.

Promises in law

Comparing Jindal’s campaign promises to the status of state ethics laws:

• Jindal promised to prohibit elected officials from lobbying, consulting or representing clients before state agencies.

Today, as in the past, if legislators timely disclose their business dealings they can do the work.

• Prohibit candidates for elected office from using campaign dollars to pay family members.

There is a general ban, but the law contains exceptions for family members who have businesses that a campaign could use. The business would have to have existed at least a year, be registered with the state and pay occupational license taxes.

• Increase the frequency of reporting by lobbyists and require disclosure so the public “knows exactly who is hired, for what specific reason, under what contractual provisions and at what cost.”

Lobbyists must file monthly online reports of spending on executive and legislative branch wining and dining. They also must disclose their clients, as previously required, general issues they are lobbying, what they are being paid in financial ranges as well as any business relationships with elected official.

No contract terms are included nor is there a ban on “contingency fee” or “win bonus” contracts as Jindal wanted.

• Make all ethics filings immediately available on the Internet.

There is no requirement in law for electronic filing of personal financial disclosure reports and no provision for it. Most campaign finance reports do not have to be filed electronically today although more candidates will have to start filing that way in the future, according to the statutes.

• Improve the governmental ethics training program for all state employees and require passage of a test on ethics laws before any new employee starts a job or receives a paycheck.

There is no requirement in state law for passage of a test prior to new employee hiring or getting a paycheck. There is state law under which all public servants must participate in a training program. It is being phased in.

• Ensure criminal charges are brought against any willful or fraudulent violation of the ethics code.

The ethics code is not criminal in nature. There are civil penalties assessed for violations and the law has not changed since Jindal took office. If during the course of an investigation a potential criminal law violation is found, the ethics agency passes the information along to the district attorney.