MORE ON ETHICS PANELS
Idaho State Rep., Phil Hart
February 22, 2012
In Idaho the ethics in government issue is front and center again. Having been the object of last year’s ethics focus and three ethics complaints, I have a few observations.
In the legislature there is a need for a self governing “ethics” venue with that responsibility resting squarely with the legislature. In order to maintain our “separation of powers” doctrine of government, such an “ethics” venue should not rely on either of the other two branches of government for its internal workings. In South Africa, they are so committed to this concept of separation of powers that their parliament is located in Cape Town and their executive branch and courts are located on the opposite side of the country in Pretoria.
My ethics complaint experience constituted a confused process with major flaws. Many of my colleagues agreed, and as a result changes were made to our House Ethic Rule. Several of the changes were designed to prevent this process from being abused for political gain in the future.
However, I’ve got some thoughts about the current proposal from the House Democratic Party Caucus. First of all, confidentiality is essential. My personal experience as the object of three separate ethics complaints was that all the complaints were released to the media before I even knew the complaints existed. There was even a fourth complaint drafted that was never released. My political detractors realized they had overplayed the ethics complaint process. Requiring that complaints be kept confidential upon submittal will reduce the political benefit of lodging a complaint. Any complaint that goes public prematurely should be automatically dismissed.
The first ethics complaint was based on allegations from “news sources” with no alleged facts that legislative duties were violated. House Rule 76, the Ethics Rule, effectively condenses the court rules of civil procedure down to about a single page and did not consider the possibly of unsubstainted complaints. In condensing 100 pages of rules down to one page something is bound to be omitted. Since the author of this first complaint against me is now the champion of the new ethics commission proposal, I hope he agrees that future complaints which are unsubstantiated will be immediately dismissed. I believe that any future ethics inquiry must consider the motives of anyone filing a complaint.
In my case, the accusations involved a personal event, not a legislative one. There were issues in the complaint that predated my service in the legislature by 8 years, and predated the complaint by 15 years. Appropriately, the ethics committee process for the House is limited to a legislator’s actions involving “legislative duties.” But one must read the rule to know this, something the ethics committee did not do early on.
None of the complaints against me survived the “fishing expedition” the committee was forced to go through based on the mere filing of a complaint. However, there was political fallout, all orchestrated by the losers of the 2010 election. The ethics complaint process proved to be a “pay-back tool” where those who lost in the last election could even the score against a conservative who was successful electorally.
The ethics committee directed the Attorney General’s office to look at all my votes for the previous year for conflicts of interest. After focusing on about ten bills, no conflicts were found. It is completely unreasonable and improper to pursue such a process on a mere hunch with no supporting facts. Without facts, there can be no “probable cause.” And without “probable cause” no complaint is viable.
For example, one bill that the committee focused on was House Bill 633 from the 2010 legislative session. This bill would have created a silver medallion called an “Idaho Gem”. Idaho Gems would have been minted in Idaho, purchases by the State Treasurer and sold at market value to Idahoans. Then Idahoans could have used these Idaho Gems to pay their state taxes. Years before I had been involved with a private money system based on gold and silver. So some people thought there might have been a conflict that I failed to disclose. But no one read the bill, nor was anyone familiar with the private money system to know what the conflict might have been! And the reality was that even if I was still involved with that private gold and silver money system today, there would have been no conflict with House Bill 633. But no one knew that, because no one did their homework. Instead multiple accusations were made against me to see what might stick.
Our separation of powers doctrine, memorialized by Article Two of our Idaho Constitution, mandates three distinct and separate branches of government, legislative, executive and judicial. When it comes to policing the behavior of the members of the legislature, this separation of powers doctrine requires that such efforts occur wholly within the legislature, at least when it comes to exercising legislative duties. However, being a member of the legislature does not exempt one from stopping at stop signs or driving the speed limit. I believe the current Democratic proposal is flawed in that it gives the Attorney General’s office, the state’s public prosecutor, a position on the ethics panel and therefore power over individual legislators.
Maybe we do need a lawyer on this panel. If so, that lawyer should be part of the legislative branch of government, not the executive branch.
While I was enduring my three complaint process, I read the House ethics rule at least 15 times. However, I don’t think the committee members read the rule until the very end of this seven month process. Instead the committee relied on an attorney from the Attorney General’s office, which not only created a separation of powers conflict, but served to misdirect the committee’s efforts. In such circumstances the Attorney General’s office has undue influence, as in my case where the Attorney General’s office was involved in the very same issues that were being litigated in court. That office effectively got a second bite at the apple.
I believe the ideal ethics committee process is outlined in scripture, found in the book of Matthew at chapter 18. That process begins with a one on one meeting between the person who has the complaint, and the one complained about. Let’s call this “mediation.” If that one on one meeting does not satisfactorily resolve the issue, scripture recommends bringing a handful of people into the process in order to facilitate a resolution. We can call that step “negotiation.” Then if by the efforts of that handful of people the issue is still not settled, then scripture tells us to make the issue public, apply penalties and part company if need be. This step is taken as a last resort.
In my case, all three of the complaints were politicized by the media before I even knew the complaints existed and before any handful of people, i.e. an ethics committee, ever dealt with any of the complaints. One of the complainants even bragged that by filing a complaint he would be “propelled into House leadership.” All the allegations were eventually determined to have nothing to do with my legislative duties, yet still got political traction. All the while, these issues were impossible to summarize on a sound bite level. Yet the sound bites drove the process. And in all three cases, the original complainants never showed up to any hearing that I attended. The entire affair was handled backwards from what the rule sets out.
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Consequently, I have three suggestions. First, ethics committee panel members should be required to read the rule which gives them their authority. Secondly, before any complaint is drafted, that the petitioner be required to invite the object of the complaint out for lunch. Breakfast would be ok too. And lastly, that the petitioner also show up at any ethics committee hearing so that the complained about person can face his accuser.
At this point in time, I don’t think we need a new ethics panel structure. We just made changes to the old structure with the enlightenment of our most recent experiences. Instead we ought to focus on the human aspect of this process, make sure the committee members know their responsibilities before they convene, and insure only legitimate complaints get any traction. This is where the greatest gains can be made.
© 2012 Phil Hart - All Rights Reserved