Opinionated @ CFE

Some Proposed Adjustments to the Ethics Initiative

Oct
14

I’ve already written about how the proposed ethics initiative is a poor substitute for citizen action on ethics issues. It seems, though, that backers are intent on pushing through the proposal anyway and voters just may well sign off on it. In the interest of putting the best law forward, I’d like to suggest some changes to both calm fears and gauge its effectiveness.

First off, the method of picking the members of the commission needs an overhaul. Requiring the leadership of both parties to agree twenty times on who will be randomly selected from is already a bit of a stretch, but allowing the sponsors of the initiative to pick the names should they deadlock is unheard of. Instead, why not allow private citizens to submit their names and names of other qualified candidates for consideration? It would provide a much bigger pool to choose from and, once filtered for any potential conflicts, would not be subject to any kind of partisan manipulation to throw selection to the petition sponsors.

Second, there needs to be a sunset provision. I honestly wish that all laws had such provisions so that they could be re-evaluated from time to time for effectiveness and relevance. If the ethics commission has done its job well 10 years from now, it has nothing to fear from the voters. If, however, it turns into a nightmarish bureaucracy the way legislators have feared, we have the chance to turn it out on its head and consider something new.

Third, there must be clearly defined goals of the initiative. While the specific rules seem like good ethical guidelines, voters need to know what it is that would be accomplished by implementation. This also provides a way to measure progress when it sunsets.

Fourth, shift the burden of proof more heavily onto the accusers. I know you guys have a big pitcher of Haterade for legislators, but you cannot simply ignore the presumption of innocence.

Even with these changes, I would still oppose the initiative as presently constituted since I do not believe it to be the best solution to the problem. I would hope, however, that such changes would make it more effective, accountable, and equitable should it be passed.

One Response to Some Proposed Adjustments to the Ethics Initiative

  1. A few thoughtful comments about the Proposed Adjustments to the Ethics Initiative expressed above.

    First – Has anyone actually asked the current serving leaders of the legislature if THEY believe they would have a problem with agreeing on 20 names? It seems to me if the leaders of both parties made an honest and good faith effort to select fair minded and honorable people then this task would not be as insurmountable as the critics of the initiative claim. Suppose the citizens could nominate themselves or others. The logical result could be a hundred or more names. Who then would do the “filtering”? In my experience “more” isn’t always “better” and those who tend to volunteer themselves usually have and agenda or an ax to grind.

    Second – The “sunset provision” already exists. If the initiative is passed, the legislature can amend the law as it sees fit in the next legislative session, or replace it altogether with their own “ethics” legislation.

    Third – I believe the goals of the initiative are already clearly spelled out in the last sentence of the Intent Statement:

    The purpose of this law, therefore, is threefold: (1) To establish clear standards of ethical and fiduciary conduct; (2) To keep honest
    people honest; and (3) To provide a fair, nonpartisan, and transparent process for reviewing complaints of ethical violations by legislators.

    Because every process provided for in the initiative with the exception of the initial vetting process to see whether or not a complaint has any basis in law or in fact is open to the the public, the public will see directly whether or not the ethics law is fulfilling its stated purpose and achieving its goals.

    Fourth – The “burden of proof” in fact does rest with the accusers at the initial stage of the process. Those making the accusation of wrongdoing have the burden to show that there is sufficient evidence to support their charge before a formal hearing takes place. The most articulate response to this criticism of the initiative has been given by Kim Burningham in his Op-Ed Piece

    “If the complainants offer enough evidence of misconduct to be believable unless rebutted, then (and only then) the legislator must show that his conduct did not violate any ethical rule. This allocation of the burden of proof is appropriate because ethics hearings are not criminal proceedings; they are similar to the treatment of corporate officers and directors under existing law. A business partner or corporate director may argue that his conflicts and self-dealing have not injured his company or shareholders, but how is this argument to be disproved? In these instances, most, if not all, of the evidence resides with the fiduciary, and hence it is currently required that he disprove the harm. Many candidates for office argue that government should be run more like a business. We believe there is truth to that, and therefore we apply to legislators the same standards of proof by which the ethical conduct of business fiduciaries has been judged from time immemorial”.

    Anyone with questions about the Government Ethics Reform Initiative can become better informed at this link: http://www.utahnsforethicalgovernment.org/ Reading the links under “Content” “In the news” will address many of the concerns that have been voiced on this blog and others about the initiative.

    I have no quarrel with those who oppose the initiative, but for those opposing views to carry any weight they should be based upon facts and valid information rather than supposition and inaccuracies.

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