Posted by Tom on October 17th, 2008
I’d been meaning to write this before the announcement from the ethics committee was posted, but it’s still relevant.
Media reports indicate Rep. Hughes has been found not to have committed ethical violations, but has been found to have participated in “conduct unbecoming a member of the House of Representatives.” I’m not clear on what the difference is.
The Trib (copied at Utah Amicus) and DesNews both did a reasonable job of reporting (better than, KSL Radio, which didn’t mention the reprimand).
“… [T]he standards by which we had to just the allegations left many—probably not many, I think left all of us—frustrated and wanting. The legislators rule of official conduct needs to be rewritten in a way that it’s clearer and more definitive. So that if, heaven forbid there be another ethics hearing, that that ethics committee will be better prepared to proceed with their responsibilities.” Rep. Todd E. Kiser, Chair, House Ethics Committee. Audio, 4:08
The Votes
All counts were determined to be “not proven with clear and convincing evidence,” and were dismissed as a result. (Similar to how our criminal system works, it seems a defendant is not “proven innocent” but rather the charges are considered not proven.) I’ve listed only the votes which were not unanimous. All 4-4 votes were along party lines. Time stamps in [square brackets], dissenting votes in (parentheses).
I. Attempted bribery of Rep. Susan Lawrence
- Violations of ethics code of official conduct Joint Rule 6-2-201(2)(d), abuse of position, violation of trust. Vote, 4-4. [5:58]
- Violation of Utah Code 76-8-103 (Bribery). Vote 6-2 (Morgan, Shurtliff) [6:56]
IV. Attempted extortion of a lobbyist. Vote 4-4. [11:58]
- Joint Rule 6-2-201(2) Violation of a law, rule, regulation or standard of conduct that reflects discredit on the House as a whole. Vote 5-3. (Morgan, Moss, Shurtliff) [12:44]
- Violation of 18 USC 1951 Hobbes Act 7-1 (Shurtliff) [14:10]
V. Attempted extortion of Margaret Bird
- Joint Rule 6-2-201(2)(c) Exercising undue influence influence on a government entity.
Vote 5-3 (Moss, Morgan, Shurtliff) [14:36]
Joint Rule 6-1-102(2)(d), Abuse of official position, violation of trust. Vote 4-4. [15:14]
“The Letter”
The committee chair also read the text of a letter to the public, addressed to colleagues in the House of Representatives. (I couldn’t find a link to it, if anyone can help out UPDATE: The Dems have posted the letter; I could not find links to the legislative Joint Rules to verify citations.) Letter starts at [19:21]. I found the following particularly interesting:
Based on these rules [of the 57th Legislature] the committee could not find by majority vote that any of these six charges were proven by clear and convincing evidence. We do find that some of Representative Hughes’ conduct as presented to us during this enquiry was unbecoming a member of the Utah House of Representatives.
We request that Representatives Hughes take steps to change his behavior and make appropriate apologies to those that have been affected.
We have also come to the conclusion that our current code of official conduct is not specific enough to provide adequate guidelines to look to when examining legislative behavior, and are not direct enough to give fair notice of whether certain behavior is ethical or not. There was great debate and dialogue as to whether Rep. Hughes’ actions rose to the level of unethical conduct.
We strongly recommend that the legislature review and revise these rules tot provide more clarity and direction.
We also recommend that the House of Representatives begin ongoing ethics training for all members as quickly as possible.
Rep. Todd E. Kiser, Chair, House Ethics Committee. Audio, 20:12 thru 21:42
My Recommendations
Perhaps the following suggestions may be of use:
- Provide bi-partisan legal counsel to each political party in the hearing. John Fellows, General Counsel, who is, by all accounts, both intelligent and capable, provided much needed advice to the committee members on how to proceed and interpret the rules of the legislature. He is also, as I understand it, an at will employee of the legislature, not protected by merit status. This, perhaps, placed him in the uncomfortable position of juggling the business of interpreting rules in an impartial manner while at the same time not offending Republican leadership that have considerable say in his future employment. His position is further complicated that he is simultaneously responsible for representing “the Legislature, majority and minority leadership of the House or Senate, any of the Legislature’s committees or subcommittees, individual legislators, … [and Legislative staff] ” (UCA 36-12-12) all while avoiding conflicts of interest (per Utah Bar Rules). That’s more than any one should be asked to do.
- Institute an independent prosecutor. It’s my understanding that certain individuals the complainants suggested be subpoenaed by the committee were not. The chair or the committee as a whole is charged with the subpoenas and investigation. While I’m not suggesting that partisan favoritism was involved in the extent of the investigation, committee leaders could be better protected from that charge if an independent prosecutor were appointed. After all, the defendant’s lawyer was allowed to be present for all of the questioning, providing only half of the equation in our typically adversarial system. The office of general counsel has the protection of the committee as its primary objective. (see above) There is no advocate with legal training who is tasked with prosecution. The committee is expected to fill both this role and that of jury.
- Define the standard of evidence. While the committee report made the standard of evidence clear at the end, as an outside observer, it was not clear to me what standard was being used. In criminal trials, U.S. courts use “beyond reasonable doubt.” For civil trials and most administrative hearings (e.g. revoking a teacher’s license, IIRC) the standard is “preponderance of the evidence” (i.e. more likely than not). The committee used “clear and convincing evidence” as its standard It’s a legal term that by its plain language sounds, to me, as a stronger evidentiary requirement than beyond reasonable doubt, but it is, in fact, somewhere between that and preponderance. (Were I, without legal training, to quantify these standards, I’d probably put them something like this: preponderance, 51%; clear and convincing, 67%, beyond reasonable doubt: 90%.)
- UPDATE: I also question the prudence of the committee voting on whether a violation of the criminal code occurred (Title 76), particularly with the “clear and convincing” standard. Their role, IMHO, in addressing criminal code violations should be limited to ascertaining whether, under the lower “probable cause” standard there is sufficient evidence to forward the complaint to a criminal prosecutor. Any further determination on criminal statue violations, I think, should come after a judge/jury has weighed in under the stronger “beyond a reasonable doubt” standard. Their role in determining whether a violation of their internal joint ethical rules should should remain their prerogative.
Further, I think the committee’s recommendation of ongoing ethics training to be an excellent idea. I’ve been frustrated in the past having conversations on ethics with legislators, and ethical allegations turn questions of legality. Ethics and laws are not the same thing, and I fear for the ethical standards of politicians when they confuse the two.
Utah Politics | 2 Comments »
