PAR Says Stronger Burden of Proof Weakens Ethics Reform

A recent change to the state’s ethics code will weaken the enforceability of the state’s ethics laws by making violations more difficult to prove. There have been no problems cited with the lesser burden of proof, which continues to be in effect until August 15. Rather, increasing the burden of proof seems to be an attempt to undermine the recently strengthened ethics laws.

The new law, which was passed during the first special session of the Legislature this year, will require that ethics violations be proved to a new, higher, “clear and convincing” standard and will make it more costly to build cases. Sufficient funding has not been allocated to support this expanded responsibility. Without additional resources, the new proof requirements will eliminate the Board of Ethics’ ability to prosecute all but the most blatant violations.

Louisiana is one of 39 states that have an ethics board or commission. Since its inception, Louisiana’s board and staff have been responsible for investigating alleged violations of the ethics code, proving with “reliable and substantial” evidence that a violation has occurred and deciding whether penalties should be levied. The new law will redirect the responsibility for rendering ethics judgments to administrative law judges (ALJs) and require the board and staff to prove their case by “clear and convincing” evidence.

The “reliable and substantial” burden is similar to the “preponderance of evidence” standard used in most civil lawsuits. “Preponderance of evidence” means the trier of fact would only have to be convinced that it is more likely than not that a violation has occurred. However, that burden was raised to the “clear and convincing” standard on the last day of the first legislative special session.

The “clear and convincing” standard is an intermediate burden of proof, falling above “preponderance of evidence” but below the “beyond a reasonable doubt” standard generally used in criminal trials. The “clear and convincing” standard is rarely used in civil suits, except in cases where there is thought to be special danger of deception.

PAR surveyed 39 states with ethics boards or commissions (see Table 1). Of the 29 states responding, 18 use “preponderance of evidence” or a lesser standard. Nine states (including Louisiana) use the intermediate “clear and convincing” standard, and two states have even more stringent proof requirements similar to what criminal courts require for convictions. While the “clear and convincing” burden is required in other states, there is no evidence that the “reliable and substantial” standard has presented problems in Louisiana or elsewhere.

To meet the higher standard, the Board will have to gather more evidence than before in order to prove its case. Additionally, the recent change will require all pending cases in which charges have been levied to be re-evaluated to see if the new standard of proof can be met at the hearing stage. Neither the administration, the Legislature nor the Board has determined what additional resources will be needed to meet this new level of responsibility. Presently, the Board oversees 300,000 or more public servants with a proposed $3.9 million budget.

It is clear that this change will slow the prosecution of ethics cases already in the works, likely create a backlog of investigations and discourage violators from admitting guilt when they think the evidence of their offense is slim. The three-word change was inserted into the controversial ALJ bill as a late amendment that was added with little debate. Many legislators who voted for the change likely didn’t understand its impact. As Louisiana struggles to improve its image, the timing of this change is particularly troublesome, but it can be remedied during the current session before its detrimental impact on ethics reform occurs.

Table 1. PAR Survey of State Ethics Commissions

* Standard as of August 15, 2008.

California, Connecticut, Illinois, Michigan, New Jersey, New York, North Carolina, Ohio, Oregon and Rhode Island did not respond.

Arizona, Colorado, Idaho, New Hampshire, New Mexico, North Dakota, South Dakota, Utah, Vermont, Virginia and Wyoming currently do not have an Ethics Board or Commission.