According to Louisina Watchdog group, Public Affairs Research Council (PAR), the new Louisiana
ethics code legislation has a snag that actually weakens the ethics law rather than strengthens it.
The issue surrounds the burden of proof required in proving that a violation has occured.
Previously, the burden was "reliable and substantial" and now the burden is "clear and convincing"
which is harder to prove and takes on the character of a criminal case proof.
The AP discussed the matter with Governor Jindal and the AP quotes Jindal to say that he is not
an attorney, that there is a disagreement over the legal standards.
Here is the report from PAR which is critical of the legislation but which suggests that changes be
made during the current legislative session:
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 is 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.
PAR is to be commended for such thorough research. Nevertheless, the La. Ethics Legislation is a failure with or without this nuance because it does not provide any CAMPAIGN FINANCE REFORM! Unless and until the La. Ethics Legislation pulls down the curtain to reveal the Wizard (Financiers of La. Elections) all this commotion about who got Saints/Hornets tickets is trivial! There can be no ethics reform without CAMPAIGN FINANCE REFORM, because you tell me who paid to put them in office and I will tell you who is really calling the shots and making our LAW. Written by R. E. Lee
on 5/2/2008
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Uhhhhhhh,,,,,,,,, now class, remember, it isn't RESULTS we are interested in, it is IMAGE that is of the almighty importance......................... So don't go abandoning ship just yet, pretty soon we can vote in Mickey Mouse as the State Cartoon Caricature...... And that will put all those ‘trivial’ little ‘ethics’ issues to rest……. I mean seriously folks, who would hold Mickey Mouse to blame when it comes time to evaluate issues of incompetence factors or corruption when things go wrong…….?????? Written by ......Whatever,,,,,,
on 5/1/2008
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