Amid a flurry of legislative scandals, the state Ethics Commission, the agency charged with enforcing the state ethics law, has been hamstrung by shortages of money, staff and, critics say, pluck.
And efforts to toughen the commission or replace it with a stronger law-enforcement agency — a Public Integrity Commission —haven’t gone anywhere, either.
“Sometimes, I just shrug my shoulders in frustration as to what things don’t get action,” said state Auditor General Eugene DePasquale, who as a House member in 2010 pushed to replace the Ethics Commission with a new Public Integrity Commission.
A history of problems
There’s no lack of evidence that oversight is needed.
In the past 15 years, more than a dozen legislators have been convicted of, or pleaded guilty to, crimes ranging from misusing taxpayer resources to hiding income from a second job to leaving the scene of a fatal accident.
Another, Raphael Musto, a Luzerne County Democrat who was a senator for more than 25 years, died last spring without facing the federal bribery charges filed against him. A judge had ruled that Mr. Musto, who was 85 at the time of his death, was mentally incompetent to stand trial.
And on Tuesday, Philadelphia District Attorney Seth Williams announced bribery and other charges against Reps. Ronald G. Waters and Vanessa Lowery Brown, both Philadelphia Democrats. They are accused of taking cash from an informant.
Legislative control
Is the Ethics Commission up for the job?
Good-government advocate Tim Potts said the commission’s independence is compromised because the Legislature sets the agency’s budget and controls most of the commissioner appointments, which are made without confirmation.
Four of the commission’s seven members are appointed by legislative leaders. The governor appoints the other three. Of the four current legislative appointees, one is a former lawmaker and two others formerly worked for the Legislature in various capacities, according to biographies on the commission website.
Policing the Legislature’s ethics is a task the commission shares with the House and Senate’s own ethics committees. All three bodies operate in secrecy — complaints and investigations are confidential, for example, though the commission will announce findings of wrongdoing and publicly release letters offering legislators and other public officials ethics advice.
On Nov. 20, for example, the Ethics Commission ruled that Rep. Thaddeus Kirkland, D-Delaware County, violated the ethics law by funneling a legislative initiative grant to a nonprofit affiliated with his family. It announced a “consent agreement” in which Mr. Kirkland was to pay $2,000 in restitution for $2,000 paid to his daughter. Another stipulation was that “Kirkland is directed to not accept any reimbursement, compensation or other payment from the Pennsylvania House of Representatives representing a full or partial reimbursement of the amount paid in settlement of this matter.”
’Spread thin’
Robert Caruso, the Ethics Commission’s executive director, said his agency doesn’t need to be replaced with a Public Integrity Commission.
However, he said the commission’s work has been challenged in recent years by staffing shortages, budget cuts and weaknesses in the state ethics law.
Although every complaint to the commission is reviewed by multiple people, Mr. Caruso said, it’s possible that cases could fall through the cracks at his agency, which is operating $105,000 below 2009 budget levels and has 11 vacancies on its staff of 27.
“We are still spread thin,” he said.
Mr. Caruso said criticism of his agency percolates when a scandal erupts and people wonder, “Gee, where was the Ethics Commission?”
But he said commission investigators “are limited by the law in what we can do.” For example, he said, the commission in many cases can’t fine ethics law violators, only order restitution when resources are misappropriated. Also, he said the commission lacks legal access to certain records.
For example, If investigators in the attorney general’s office gather information on allegations against a lawmaker and decide they lack evidence for a criminal prosecution, Mr. Caruso said, the commission “would be barred from looking at what information they obtained” to determine whether there might be sufficient evidence to pursue the person for a violation of the ethics law instead.
During a September 2013 hearing before the House State Government Committee, the commission requested greater access to confidential records. It also requested enhanced subpoena powers, mandatory ethics training for “newly elected officials at all levels of government” and a tightening of ethics law language that might give legislators and other public officials greater pause about outside financial interests.
Under the proposed change, the commission could find that legislators or other officials had a conflict of interest not merely because of a business relationship with a third party but because they had a “a reasonable expectation of a business relationship developing.”
In all, the commission made 27 proposals for modifying the ethics law and improving the state’s ethics climate. So far, Mr. Caruso said, the Legislature hasn’t approved any of them.
Legislators generally are loath to give too much power to agencies overseeing them, said Rachel Paine Caufield, associate professor of political science at Drake University in Des Moines, Iowa, and associate director of the Harkin Institute for Public Policy and Citizen Engagement.
Mr. Caruso dismissed the suggestion that political ties influence the commission’s work. “It’s not a fair criticism to say we’re tied with the General Assembly because that’s never been the case.”
Legislative exemption
A constitutional prerogative also limits the commission’s reach.
The commission frequently issues rulings saying that municipal officials violated the ethics law by voting on matters in which they had a conflict of interest. Last spring, for example, the commission ruled that Homestead Councilwoman Barbara Broadwater violated the ethics law by voting for her sister’s appointment to a vacant council seat.
Yet in what he acknowledged might be viewed as a double standard, Mr. Caruso said the commission can’t investigate state legislators for conflicts related to legislation they sponsor or votes they make. He said that’s because legislative activity is protected by the “speech or debate” clause of the state Constitution, which supersedes the ethics law.
That’s been the commission’s position since the late 1980s, when then-Sen. Leonard J. Bodack, D-Lawrenceville, asked the commission whether he could serve in the Legislature and work as a stockbroker at the same time. The commission issued an advisory opinion telling him that moonlighting was permissible but that the ethics law required him to abstain from matters in which he had a personal interest.
Mark Corrigan, then the secretary of the Senate and now one of the four commission members appointed by legislative leaders, asked the commission to reconsider its opinion. According to commission records, Mr. Corrigan expressed concern because many members vote on matters in which they have an indirect interest and because the advisory opinion appeared to conflict with Senate rules saying a member must vote on all bills unless excused by the presiding officer.
In March 1987, the commission concluded that neither it nor the ethics law had jurisdiction over “legislative activity, defined as the introduction, consideration, debating, voting, enactment, adoption or approval of legislation.” While the commission is precluded from investigating conflicts related to legislative activity, Mr. Caruso said, other law-enforcement agencies may have the authority or means to do so.
According to the National Conference of State Legislatures, most states have some form of legislative immunity, which grew out of English monarchs’ attempts to bully legislators.
“I think the underlying rationale for the privilege continues to be an important one. I think it’s still relevant for the separation of legislative and executive and judicial power,” said Steven F. Huefner, professor at Ohio State University’s Moritz College of Law.
Mr. Huefner said legislative immunity may complicate — but does not preclude — criminal prosecution. In a 2003 article in the William & Mary Law Review, Mr. Huefner said evidence that a legislator accepted a bribe can lead to a conviction “without proof that the legislator in fact voted a particular way.”
“Bribery,” Mr. Huefner said in an interview, “is not a legislative activity.”
Calls for change
Rep. Scott Petri, R-Bucks County, who was Ethics Committee chairman during the past term, said he believes the state has strong prohibitions on conflicts of interest.
But Hanacq Callaghan, director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University, said ethics law is one part of an ethical culture.
”That’s a floor. That’s a minimum. That’s where you get into the difference between compliance and ethics. That’s something public officials have to struggle with all the time,” she said.
Mr. Potts said that to be more effective, the commission must cut legislative apron strings and become an outspoken advocate.
“It shouldn’t be Common Cause and the League of Women Voters” leading reform efforts, he said. “It should be the state Ethics Commission. They should be leading the charge.”
Harrisburg correspondent Kate Giammarise contributed. Joe Smydo: jsmydo@post-gazette.com or 412-263-1548.
First Published: December 22, 2014, 5:00 a.m.
