It’s a procedural matter, but one which opens up a potential mess with respect to campaign finance complaints in future years. Yesterday, State District Judge William Morvant ruled that Louisiana’s Board of Ethics doesn’t have jurisdiction to rule on campaign finance violations contested by the alleged violator.
The result of that ruling will make for a less-than-perfect process by which the state investigates and punishes violations of campaign finance laws – just in time for one of the most egregious alleged violations of those laws to wind its way through the system in the future.
At issue in Morvant’s court is the case of two-time state senate candidate Shawn Barney, who unsuccessfully ran for the 3rd District seat currently held by Jean-Paul J. Morrell. As it happens, Barney was something of a scofflaw when it came to filing the required campaign finance disclosures, and his repeated neglect of those duties landed him fines of $60, $360, $600, $600 and $2000. The state Board of Ethics handed down the fines, so Barney hired Gray Sexton, a Baton Rouge lawyer who is also a former ethics board administrator and chief attorney. Sexton hated the 2008 ethics reforms suggested by Gov. Bobby Jindal and passed by the state legislature; he had already left the ethics board following another law the legislature passed, which would have forced employees of the ethics board to disclose representation of private clients, in 2007.
A quick digression on the last bit, because it bears repeating. Sexton was the Board of Ethics’ chief attorney, and he also had clients in his private practice. When the legislature noted a potential conflict of interest inherent in such a situation and moved to prevent ethics board employees being hired by alleged violators, Sexton chose to get out of the ethics game rather than comply with the law. And now he represents people accused of campaign finance violations.
You could say that the “optics” of this are not great, and we wouldn’t disagree.
In any event, Barney got his money’s worth from hiring Sexton. The Times-Picayune picks up the story and sets the scene for the judge’s decision…
The fines were determined by a standard schedule of penalties. The board had trouble contacting Barney and getting him to appear at hearings, according to court documents. Notices from the board were returned unclaimed and Barney did not show up to hearings after being served a subpoena to appear.
The ethics board then asked the district court to convert the board’s order to pay late fees into a judgment of the court, which would allow a procedure to force collection of the fines. Barney brought a case to the court saying that the ethics board was not allowed to hold a hearing for fines related to campaign finance reports.
In court filings, Sexton cited changes in ethics laws that removed the ethics board’s role as judge of ethics violations and assigned the duty to panels of administrative law judges within a division of the executive branch. The ethics board has continued to act as investigator and prosecutor of cases.
The new system of judging has been implemented for cases involving violations of the ethics code, which deals mainly with conflicts of interest related to public officials. But the board has continued to hold hearings on campaign finance late fees, which are covered under a different section of law.
Sexton argued that the new law also applies to hearings on alleged infractions of campaign finance reporting. In the Barney case, the board held an “impermissible public hearing and issued an order that it had no authority to issue,” according to a court filing by Sexton. The board also failed to file charges, the filing says.
In its response, the ethics board said the 2008 change only applies to the law involving public hearings that result from the board’s charges following an investigation. Investigations of late campaign finance reports are not necessary, the board said. Candidates are allowed hearings to request reduced or erased fines due to personal hardships or other extenuating circumstances. Also, the campaign finance law is under a different section of law, the board said.
Morvant sided with Sexton – “begrudgingly,” he said.
“It’s going to hamstring the ability of the Ethics Board to function even more so than the prior legislation has,” said Morvant from the bench. “If the goal was to streamline this and make its function easier, it sorely missed its point.”
The upshot of the case is that from now on, campaign finance violators cn be investigated by the Board of Ethics and fines, etc. can be assessed. If the accused decides to just pay the piper, fine. But if not, the ethics board no longer has the power to take the alleged miscreant to court – the case must be turned over to administrative law judges.
And those administrative law judges are appointed by the governor, overseen by an appointee of the governor and serve at his pleasure. So if one of the governor’s allies is running for office in Louisiana and decides to blow off campaign finance disclosures, said candidate might choose to tell the ethics board to take their fines and “shove it,” knowing that the governor’s got his back with the administrative judges.
Is this an accusation that Jindal is setting the stage for a whitewash of cheating? No. We believe he was serious about improving the ethics of Louisiana politics when he pushed the changes through in 2008. But the ethics regime enacted that year is beginning to fray, and it’s going to have to be fixed.
Moreover, that regime isn’t likely to be fixed before something is done about Calvin Fayard’s practice of laundering campaign funds through the state Democrat Party to his daughter’s failed campaign for Lieutenant Governor this fall. Now that Sexton has managed to wedge open the door on keeping campaign finance violations out of the state’s district courts, don’t be surprised in the least if he isn’t retained as counsel for the Fayards and/or the state Democrat Party should that issue be pursued by the appropriate parties. Hayride sources confirm that Fayard and Sexton are on friendly terms and have been for years.
And it’s almost certain something will come of the situation. Just prior to the election, the fact that the state Democrat Party failed to file 48-hour reports for the two weeks prior to the election after it was disclosed that the elder Fayard had sent $210,000 its way to finance $209,936 worth of a “media buy” to benefit the younger Fayard’s campaign. The Democrat Party still hasn’t disclosed its donor records for those two weeks after the controversial report surfaced – but it seems they had some money coming in from somewhere. Because on the Fayard campaign’s reports we find the Louisiana Democrat Party’s footprints all over the place.
For example, there’s $198,998.40 for a “media buy” dated October 29.
Or another $121,367.00 for a “media buy” dated October 27.
Or “media buys” for $100,000.00 and $114,015.76 dated October 21.
Bear in mind that as of October 13, when the laundry operation was uncovered, the party disclosed cash on hand of $235,375.04. They had to get the money from somewhere to fund all those expenditures for the Fayard campaign.
Sure, we won’t pre-judge this and say Buddy Leach’s dry-cleaning enterprise was ongoing after it was exposed. But the failure/refusal to file a donor report for the last two weeks while shoveling advertising money into Fayard’s campaign doesn’t exactly scream “innocent” to a reasonable observer.
This is the kind of thing an ethics regime is designed to smoke out and punish. Now, we’ve got one of Fayard’s buddies cracking open a hole in the one Louisiana rebuilt in 2008 just in time for Fayard and the state’s Democrats to drive through.
Probably a coincidence. But if you’re going to flagrantly break the law, it sure seems like this might be a good time and place to do it.