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Resolve Ethics Adjudication Issues, PAR Says

As part of the governor’s ethics reform package in 2008, substantial changes were made to the process of prosecuting and judging those who violate the state’s ethics code. One unsettling change was the transfer of adjudicatory power from the Board of Ethics to civil service administrative law judges. The ethics board detailed its concerns about that change at its most recent meeting and adopted a research brief that calls for the governor and legislative leadership to refer the matter to the Louisiana State Law Institute (LSLI) for in-depth study. The Legislature and governor should take the next step and swiftly enlist the expertise of the LSLI in order to develop the best possible framework for the ethics adjudicatory process.

During the 2008 ethics session, PAR noted that the transfer of adjudicatory power to administrative law judges raised troubling questions that would require significant legal analysis to put to rest. However, with little to no discussion of alternative proposals or likely implications, the Legislature stripped the board of its adjudicatory power. Certain board members speculated that their power to judge was taken away in retaliation for previously charging key state officials with ethics infractions.

Shortly after the change, all but one of the 11 board members resigned. A central reason given for those resignations was the Legislature’s decision to remove the board’s adjudicatory power. Ten new board members eventually were appointed—the majority of which now also take issue with the new process.

Questions as to dilution of the strength and authority of the board, and its resulting ability to interpret and enforce the law, remain unresolved. In September 2009, the board formally “adopted” as its official position a research brief authored by its chairman. The brief raises valid questions regarding the legality, reasoning and soundness of changes made to the board’s authority. It urges the governor and legislative leadership to direct the LSLI to research and present a “rational, workable and constitutional allocation of responsibilities” for investigating ethics complaints and filing, prosecuting and adjudicating ethics charges.

The LSLI serves as an advisory agency to the Legislature by conducting scholarly legal research and recommending reforms to the law when requested. Generally, research initiatives come at the request or direction of the Legislature through a typical legislative instrument (bill or resolution). The LSLI forms a special committee comprised of renowned legal experts relative to the topic to be researched. Their strength is that they have time and expertise to dedicate to an issue that the full Legislature does not have.

The Legislature and governor should formally request that the LSLI study the ethics adjudicatory matter thoroughly and recommend solutions to the Legislature prior to the next legislative session. The process of deciding the guilt or innocence of those accused of ethics violations is too important to be altered without thorough legal study and thoughtful consideration. Taking such initiative now would boost citizen confidence that the board’s role and authority are based on reliable research instead of political whims.

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