Loath as the Louisiana Legislature might be to get into the nuts and bolts of adjudicating ethics matters of elected and appointed officials, it looks as if it will need to do so again as kinks continue to crop up from the massive reform of ethics laws and in their adjudication from the 2008-09 period.
Back then, after incoming Gov. Bobby Jindal made it one of the centerpieces of his successful campaign, in a special session he called this finally got the Legislature to pass much more stringent standards in acceptable practices and disclosure. Subsequently, other changes got made to make more professional the adjudicatory aspect, depoliticizing it and focusing the Louisiana Board of Ethics on the prosecutorial aspect. Previously, the Board had been all of judge, jury, and executioner, which gave inordinate power the small coterie of staff members and allowed politics to creep into judgments with the political appointees of the Board determining whether to follow staff recommendations on prosecution, guilt or innocence, and in punishment.
In fact, the majority of power was concentrated in the hands of the ethics administrator, then long-time employee Gray Sexton. However, the year before the sweeping changes occurred, a law was enacted that prohibited the administrator from essentially operating his own private practice on the side and mandating financial disclosure of the administrator. Rather than follow these guidelines, he quit, saying this change constituted some kind of vendetta against him by disgruntled politicians whom had faced the Board, and then gathered further negative publicity when he and the Board tried to get around the new law with a contractual arrangement for his services that got scuttled.
Denied now any powerful role in this area, Sexton since has gone whole hog in defending the very class of individuals he claimed were out to get him. And, far more than anybody else, he has been able to expose through a number of high profile defense actions the loopholes and loose ends left from the revamping.
Last session, the Legislature did delve back into the area by clarifying Board appellate actions into the judiciary and procedural matters, but in doing the latter allowed Sexton to open another can of worms regarding the issue of discovery. Essentially, the Board has followed what one statute argues in terms of disclosure of information by public bodies but which conflicts with provisions passed last year regarding the extent of information in the discovery process that must be turned over to defendants in ethics cases.
Board President Blake Monrose seems content to let the courts decide the matter, during which in the interim more cases may get dismissed by the administrative law judges that comprise this year’s edition of the Ethics Adjudicatory Board because the Board continues to follow the other disclosure law. To reverse course and not do that with ethics cases while awaiting any decision on the matter, in essence jettisoning that interpretation in favor of the language of last year’s law, might encourage the judiciary to decide in favor of that law over the current interpretation.
This situation cries out for, yet again, legislative intervention, but also puts policy-makers at a crossroads. No doubt the professionalization of the process helps to make better decisions, but it also requires professionalization in all aspects. If the system is evolving to a process that mirrors the judicial process in the area of criminal law (with more egregious offenses already subject to that), then it needs to mimic that in other ways such as in the discovery process.
Note that this also means greater resource demands on ethics administration as a consequence of the tweaked process. In tight budgetary times policy-makers understandably act even more reluctantly than usual to fund these matters, but the importance of doing it right was underscored recently when Forbes Magazine online ran a piece from one of its stable of local business cheerleaders emphasizing improvement in the state’s business climate came partly as a result of improved perceptions over ethics in government.
As tiresome as this might seem to elected policy-makers, more adjustment to the laws regarding ethics should not come by default by the judiciary. They need to act on this issue.