Ethics changes called into question
Sunday, April 27, 2008
By Robert Travis Scott
BATON ROUGE -- The president of a government monitoring group said Friday he was concerned about a new, elevated standard for judging violations of ethics laws that some say could hamper the state's ethics enforcement system.
Speaking at his group's annual meeting in Baton Rouge, Jim Brandt of the Public Affairs Research Council of Louisiana said his nonpartisan organization was examining the potential impact of a change in the ethics adjudication process made during the special legislative session in February.
Brandt's focus on the issue highlights a controversy that has arisen since the session, which was called by Gov. Bobby Jindal to implement a new regime of ethics laws.
The administrator of the Board of Ethics has said the change will make the state ethics code practically unenforceable, while the senator who made the change to a key piece of legislation said the ethics board had been operating under a legally incorrect standard for judging cases and a fix was needed.
Act 23 of the special session creates a new system for trying ethics cases by putting state administrative law judges in the adjudicatory role in place of the ethics board. The ethics agency will act as the investigator and prosecutor, but will no longer act as judge in ethics trials when the law takes effect Aug. 15.
Under current law, the ethics board will acquit the accused person if the hearing "fails to disclose any substantial evidence to support the charges." Act 23 changes that standard to say that the trial must show "clear and convincing evidence to support the charges."
While there is general agreement that this change will make ethics charges more difficult to prove, there is disagreement over how hard that will be and whether the change is justified.
Sen. Bob Kostelka, R-Monroe, the chairman of the Senate's ethics legislation committee who put the change in the bill, said ethics cases never should have been based on a standard of substantial evidence. Substantial evidence implies that someone could be found guilty of a violation if it was demonstrated that "maybe you did it," Kostelka said.
Kostelka, a former judge, said legislators considered the usual scale of standards of evidence for the new law. Hearings of civil cases ask for a preponderance of evidence and guilty verdicts in criminal cases require evidence beyond a reasonable doubt, he said. Lawmakers wanted a standard for ethics cases that fell in between, and "clear and convincing" is the right fit, Kostelka said.
John Devlin, a professor at the Louisiana State University Law Center, said substantial evidence is a standard that appeals courts would use to decide whether to overturn a ruling by a lower court. He said it was not a standard that is typically used for what lawyers call "initial findings of fact," or courtroom cases to find whether someone is guilty of violating the law or at fault in a lawsuit.
Ethics administrator Richard Sherburne said the "clear and convincing" standard will be just as hard to prove as the criminal case standard of beyond a reasonable doubt. With that high a bar for evidence, the ethics agency will need a great deal more resources and staff to prosecute cases effectively, he said.
"Does it make it practically unenforceable? Yes," Sherburne said. "Unless someone confesses, we are going to have to become a much broader, deeper investigatory agency to prove cases to that level."
Even with more resources, some charges will not be provable even though an ethics violation has occurred, Sherburne said.
Ann Wise, director of the state's division of administrative law, said charges against lawyers for unethical professional practices use the standard of clear and convincing evidence for proving guilt. She said the standard also is applied in legal matters when there is a risk of deception, such as when charges might be made falsely to smear someone's reputation.
"I don't have an opinion on what the standard should be" for ethics law cases, Wise said. But the standard of clear and convincing evidence is "not illogical," she said.
Devlin did not express a view about what standard would be best for ethics cases, but said these types of decisions are important and difficult.
"Choice of a standard of proof . . . represents a judgment call about how the risk of error should be distributed," Devlin said. "The ordinary civil law standard of preponderance of the evidence usually means that there will be as many false positive errors as there are false negative errors.
"The traditional standard of criminal trials, of beyond a reasonable doubt, represents that it is so important to have no false positives, no wrongful convictions, that we are willing to take the risk of a significant number of false negative results, or acquittals of the guilty," Devlin said.
"The clear and convincing standard is one that will result in a greater number of false negatives and hopefully a relatively small number of false positive results. It falls in between," Devlin said.
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Robert Travis Scott can be reached at firstname.lastname@example.org or (225) 342-4197.