The House Omnibus Ethics Bill
As Amended by the House Judiciary Committee H.3184 combines a reorganizing of the ethics committees and commissions with an alteration of criminal penalties for select ethical violations. The first portion of the bill reorganizes the State Ethics Commission into a 12 member board with 4 members appointed by the Governor, 4 members appointed by the Supreme Court, 2 members elected by the House, and 2 members Elected by the Senate. In addition to its current powers the newly reconstituted Ethics Commission would have the power to receive and investigate complaints against members and staff of the General Assembly. However, in the event a Commission investigation determines there is probable cause to believe a violation was committed by a legislator or staff it must refer this complaint back to either the House or Senate ethics committee. Once the Commission refers a complaint back to one of the Legislative Ethics Committees, they will hold their own hearing from which they will determine whether a violation occurred and if so, the proper punishment.
This is a weak attempt to address legislative self-policing. Any bill that leaves the legislature the power to punish its own members for illegal acts is missing a crucial element of ethics reform. If anything this bill would increase the power of legislators by allowing them to choose members of the body that will punish executive branch members for ethical violations.
H.3184 also address investigations to judicial conduct in much the same way it does investigations against legislators. Under current law accusations of ethics violations in the judiciary are handled by the Supreme Court. H.3184 would transfer this power to a new Commission on Judicial Conduct. The commission would be made up of 24 members, 8 appointed by the Supreme Court, 8 appointed by the Governor, 4 elected by the House, and 4 elected by the Senate. Once again, this section of the bill would strengthen the legislature by giving them appointments in the body designated to police the judicial branch.
There is one other change to the Commission/Committee powers that is worth mentioning. This bill would legally authorize the legislative ethics committees to issue confidential advisory ethics opinions to legislators. Legislators will be able to take advantage of this power by getting a green light for ethically questionable actions with citizens none the wiser. The legislative committees already have this power under House and Senate rules, but true reform would mean eliminating these rules, not writing them into law.
H.3184’s altered penalties for select ethics violations are drawn straight from H.3185. This section of the bill would make both offering a bribe to a public official or witness in order to influence testimony, and soliciting a bribe by a public official or witness felonies punishable by up to ten years’ imprisonment, a $10,000 fine, and a permanent disqualification from serving as a public official. The bill would also make misuse of campaign funds a misdemeanor if the amount is less than $2,000 and a felony if the amount of campaign funds used exceeds $2,000. While this represents an increased penalty for misuse of funds, the bill fails to alter current law that allows officeholders to use their campaign funds on expenses related to their office – a loophole that has been stretched by politicians to allow use of campaign funds for all kinds of questionable expenses. Penalties for additional crimes – like unlawful nepotism – would also be increased under this bill. Finally, the bill would reduce the penalty for failure to file a statement of economic interest. Under current law failure to file can rise to the level of a misdemeanor, the bill would make this violation a purely civil offense with only civil penalties in most cases. Failure to file would only rise to the level of the misdemeanor if the effect of the failure was to conceal another ethical violation.
While the portions of the bill that increase penalties are positive reforms, they will almost certainly make no difference without concurrent reforms. Increased penalties for misuse of campaign funds will become far more meaningful when misuse of campaign funds is more narrowly defined so as to prohibit the use of campaign funds on “official duties” of a public office. Likewise, many of these other penalties will be difficult to enforce without the information provided by income disclosure laws mandating that public officials disclose all sources of income.