Today’s guest post is from Shruti Shah, President and CEO of the Coalition for Integrity (C4I), and Alex Amico, a C4I legal fellow.
Recently, the Coalition for Integrity released a report on Enforcement of Ethics Rules by State Agencies (along with an associated index and map) which examined the performance of state-level ethics agencies across the United States. In addition to providing basic enforcement statistics, the report emphasized two aspects of these agencies’ performance. First, the report looked at how these agencies enforced the ethics laws they were charged with enforcing, to see how aggressively agencies stand up for ethical government within their legal authority. Second, the report examined how transparent the agencies were in that enforcement, and hence how accountable these agencies make themselves to the public. (The report also ranked each state and agency based on their transparency of enforcement). Both of these aspects of agency performance are crucial to creating a culture of honest government and a robust ethics enforcement regime. Some our headline findings with respect to each of these dimensions of performance were as follows:
- First, with respect to enforcement of ethics rules, it seems that state ethics agencies are reluctant—probably excessively reluctant—to recommend removal from office as a punishment for ethical violations. In 2018, only two state ethics agencies (those in Florida and Hawaii) recommended that a violator be removed from office. And in that same year, only two state ethics agencies (in Florida and Ohio) issued a public censure of an official. Instead of these more stringent sanctions, most ethics agencies issue resort primarily to private letters of admonition and fines. The former is obviously inadequate. Fines can be effective, and some states did impose significant fines (some in the tens of thousands of dollars). But in most cases the fines were for paltry amounts, usually under $1,000. In some states, such as Minnesota, the fines are statutorily limited at very low levels (a maximum of $100 for failure to file financial disclosure reports). In many states, even though there is statutory authority to impose sufficiently large fines to deter misconduct, such fines are hardly ever levied.
- Second, state ethics agencies need significant improvement in the transparency of their enforcement activities. The gold standard for an ethics agency, and the standard that state residents should demand, is to publish an annual or biennial report that clearly outlines the number of complaints received and dismissed, and the number of cases resolved with or without a finding of an ethics violation. Additionally, final decisions should be published on the agency’s website. (None of this basic information, it’s important to stress, would compromise the confidentiality of investigations.) Many states do not provide such comprehensive information, and some, such as Mississippi and North Carolina, not only do not furnish an annual report or publish any information about ethics enforcement whatsoever, but did not respond to multiple email requests for information. Other states are better, but only 18 of 50 state ethics agencies published a detailed report on the agency’s enforcement efforts in every year the agency was operational, and even some of those reports failed to adequately communicate the agency’s activities. This is a significant problem, as it’s in the public’s interest to know the behavior of public servants, and the actions of the government in response. Indeed, few things are more important for the public to be informed about than public servants behaving unethically or illegally.
Building a solid ethics regime requires improving both prongs of transparency and enforcement. State ethics agency must enforce ethics rules and laws in a way that demonstrates a commitment to ethical government, and that sends a clear statement to elected and appointed public servants that unethical dealings will be swiftly and harshly dealt with. Additionally, they should be open and honest with the public by publishing an annual or biennial report that communicates all relevant enforcement information. By improving on both these fronts simultaneously, states can take a major step towards the goal of honest government.
I agree that publishing timely and detailed information regarding ethics enforcement within public offices is important and a way to hold public servants accountable to their constituents. However, as someone that has worked within public institutions I also know that they are often severely understaffed, making it challenging to complete such reports and provide up to date statistics. What did you find to be the biggest barrier to reporting? Was it an unwillingness to name and shame, lack of time or resources to pull together information or something else? Once pinpointing obstacles, what do we do to incentivize agencies to comply with reporting requirements? These annual and biannual documents should be released but it seems like it is not widely occurring so what internal government or external forces could lead to a change in this practice?
I recently had a conversation with a prosecutor in a public corruption unit. I will not identify the prosecutor’s name or office. This unnamed prosecutor stressed that corruption and campaign finance cases are difficult to pursue at the local level because even when the laws are clear, local politics consists of a closely linked set of donors, party bosses, unions, and business interests. It is these interests that lead to the election of State AGs and District Attorneys and when any one of those interests is placed under close scrutiny it inevitably implicates the others. As a result, prosecutors and investigators rarely know where a corruption investigation will lead, and few State AGs or DAs want to bite the hands that elect them.
For example, take a look at New York. It has some of the strongest corruption laws in the country, the Joint Commission on Public Ethics (JCOPE) (an independent body) has jurisdiction to investigate state public employees and elected officials for corruption, and in New York City, the Campaign Finance Board has jurisdiction to investigate New York City officials under the City’s local laws. Yet, despite all these overlapping authorities and jurisdictions, major corruption cases in New York are pursued in Federal Court by the Department of Justice.
All these state anti-corruption entities were created by or answer to political operators whose supporters don’t want their interests assailed. Maybe the easiest answer to state level corruption is federal prosecution rather than more dysfunctional state entities.
Thank you for this post, it raises some fascinating questions about how oversight and corruption of misbehavior is conducted at the state level. The previous two comments raise separate possible explanations for the outcomes identified: 1) ethics agencies may be overworked and understaffed, and may choose to pursue courses of action that are least taxing (presumably sending private letters of admonition comes at a lower cost than imposing fines, which in turn comes at a lower cost than pursuing the removal of an elected official). 2) Members of ethics agencies may actually have political incentives to avoid causing trouble for political allies. To the extent that these outcomes are explained by corruption, I am interested in learning a little bit more about the mechanism by which this occurs. For example, are ethics committees only pursuing lesser offenses (those that might reasonably justify letters or fines), or are they identifying all kinds of ethical misconduct and systematically under-punishing it? It seems that each of these potential causes would lead to different solutions. If the problem is under-funding, than allocating more resources will be a necessary component of any long-term solution. If it is corruption of the first type (only identifying lesser crimes), than some form of auditing of ethics investigations seems more important. If, on the other hand, systematic under-punishment of identified violations is the issue, than requiring greater transparency may go a long way towards addressing this issue. Of course, all of these factors may be involved to one degree or another, and a multifaceted solution may be necessary, but it does seem to me that disentangling the causes will be a vital step to establishing exactly what the corrective framework should be.
Thanks for the post. It is very informative. To better understand the data, especially the reasons why the agencies are not applying “removal from office” as a punishment, I would be interested in learning more about the composition of these ethics committees. The explanation could possibly be a certain kind of corporatism between the commission members and the investigated public officials, especially if they are judged by their peers. On the other hand, as Maura adressed above, maybe the committees are just addressing the easiest cases that do not deserve such a harsh punishment, either for lack of institutional capacity or for lack of political will.
Thank you for your post and the balanced framing of the issues around enforcement of ethics. The twin conclusions being the need for more transparency on enforcement parameters, and more enforcement itself make intuitive and empirical sense (based on the study). As a transparency advocate myself, both of these seem to be fairly reasonable and straightforward expectations. However, the most common push back is often (1) poor state capacity to ensure disclosure (2) punitive measures around ethic lapses not being representative of actual reform. Some of the comments also refer to this. Perhaps anticipating and addressing this at the start might help reach a wider audience, as this is indeed a public issue that concerns all citizens.