Jun 29 2008
On why the Ethics Boad quit - the other shoe
A reader of my post “Where Oh where has our Ethics Board gone” suggested that I review the ethics case of Arnold & Heaton.
On February 12, 2006, C.B. Forgotston wrote an article titled “Did two Leges violate the Heh, Heh, Heh, Ethics Law?”. Forgotston covers the ethics law we just discussed (R.S.1112; 1120; & 1102).
In addition to providing the relevant laws, Forgotston wrote:
According a media account (here) two leges may have violated the state Heh, Heh, Heh, Ethics Law by voting on matters affecting members of their “immediate family.” The case at hand involves an effort to eliminate the 7 assessors in the New Orleans where the son and brother of two of the assessors voted to kill the effort.
I was just asked: “At what point do legislators have to recuse themselves from voting for things that benefit their family members?” The law requires the two leges to recuse themselves from voting OR to file written reasons why the recusal was not necessary.
My response: “When they get caught.”link
On April 12th, 2007, the ethics board discussed the issue of Representatives Arnold and Heaton filing an injunction against the board for pursuing the ethics charges the board had filed against them.
April 12, 2007 9:00 a.m. Supplemental Agenda General Business
G69. Docket No. 06-207
Discussion in executive session of the lawsuit filed in the 19th Judicial District Court by Representatives Jeffery J. Arnold and Alexander Heaton against the Board of Ethics seeking to enjoin the Board from pursuing charges issued against the representatives concerning their participation in matters before the Legislature.link
On December 14, 2007, “We Saw That” published an article titled “heh heh heh ethics board bungles Arnold & Heaton case”. The author criticizes the ethics board for filing charges on the two representatives for discussing the issue and not for the actual casting of the votes. The article mentions that the hearing into allegations is on hold pending a decision by the 1rst Circuit Court of Appeals on whether the ethics board has jurisdiction on the case. link
I just happend to have the Times-Picayune article from that day saved in my files because that was the day that the Senate named their chairmen for the new legislative session. For some unknown reason they chose to name Sen. Quinn - a person in the middle of a rancorous divorce/custody fight - to be in charge of Judiciary A - the committee that writes all family law. They also named Sen Derrick Shepherd to head the Senate Committee on Local and Municipal affairs - who has since been indicted by the feds.
But I digress, The Times-Picayune article for that day titled “Ethics hearing waits for ruling” gave the defendants position:
Attorneys for the lawmakers have argued that their participation is protected by the constitutional right to free speech, and that only the House had the authority to punish them.
The case In re Arnold, No. 2007 CW 2342 (La. App. 5/23/2008) (La. App., 2008) is available for free from “The Public Library of Law” link
The appeals ruling summarizes the procedural history of the case:
PROCEDURAL HISTORY
Following a private investigation, the Louisiana Board of Ethics (”the Board”), by a majority vote at its January 9, 2007 meeting, issued certain charges against Louisiana State Representatives Jeffery J. Arnold and Alexander Heaton, alleging that Arnold and Heaton violated Section 1112(B)(1) of the Code of Governmental Ethics by participating in the discussion of House Bills 50 and 69 of the 2006 1st Extraordinary Legislative Session and the discussion and vote of House Bill 656 of the 2006 Regular Legislative Session, concerning consolidation of the Assessor’s Office in Orleans Parish, while Arnold’s father and Heaton’s brother served as elected assessors in Orleans Parish.1 The Board set the matters for public hearing on August 9, 2007.
On March 6, 2007, Arnold and Heaton jointly filed a petition for declaratory judgment and injunction in the Nineteenth Judicial District Court, seeking a judgment declaring that the privileges and immunities set forth in Louisiana Constitution article III, section 8 bar the Board from investigating, prosecuting, adjudicating, and penalizing them for participation in the legislative process during their service in the legislature when acting within the sphere of legislative activity, and enjoining the Board from pursuing any currently pending investigations, prosecutions, adjudications, or penalties against Arnold and Heaton for their participation in the legislative process.2
In the declaratory judgment suit, the Board filed exceptions raising the objections of lack of subject matter jurisdiction and prematurity. By judgment dated April 19, 2007, the district court denied the Board’s declinatory exception of lack of subject matter jurisdiction, but maintained the Board’s dilatory exception of prematurity. In its oral reasons, the district court found that Arnold and Heaton had to first assert their constitutional issues to the Board prior to or during the public hearing and that the Board had to make an initial determination as to whether the actions of Arnold and Heaton were protected or if the Board was exceeding its authority or jurisdiction in pursuing the charges against Arnold and Heaton.
Arnold and Heaton appealed that judgment, contending that the trial court erred in finding that they had to present their constitutional arguments as to the meaning and scope of LSA-Const. art. III, sec. 8 to the Board prior to seeking a declaratory judgment from the district court.3 Meanwhile, however, on August 2, 2007, Arnold and Heaton filed an exception of jurisdiction ratione materiae, i.e., an exception to subject matter jurisdiction, before the Board, setting forth their argument that the Legislative Privileges and Immunities Clause, LSA-Const. art. III, sec. 8, removed from the Board the power and authority to investigate, prosecute, adjudicate, and potentially punish Arnold and Heaton for their participation in the legislative process. Following a hearing, the Board denied their exception.
Arnold and Heaton then filed the instant writ application with this court, seeking a determination that the Board erred in denying the exception and seeking a stay of all proceedings before the Board, particularly the public hearing scheduled for December 13, 2007 to explore the charges against Arnold and Heaton. On December 6, 2007, this court referred the merits of the writ application to the panel handling the related appeal in the declaratory action suit and granted the plaintiffs’ request for a stay pending further orders of this court. In Re: Jeffery J. Arnold and Alexander Heaton, 2007 CW 2342 (La. App. 1st Cir. 12/6/07) (unpublished). Thereafter, by order dated January 18, 2008, this court granted certiorari in this matter and ordered the Board to file with this court copies of the record of the proceedings before the Board. In Re: Arnold and Heaton, 2007 CW 2342 (La. App. 1st Cir. 1/18/08) (unpublished).
In their writ application, Arnold and Heaton contend that the Board erred in denying their exception of jurisdiction ratione materiae, asserting that the Board was without authority to interpret the Louisiana Constitution and that their speech within the legislature was protected from being questioned “elsewhere” other than in the House of Representatives, by LSA-Const. art. III, sec. 8.
So much for the history of the case. On May 23rd, 2008, the Louisiana First Circuit Court of Appeals panel of Whippel, Guidry and Hughes J.J., led by Whippel, ruled against the board of ethics. In a fascinating discussion, the court decided that the ethics board has no authority over the legislature for acts that they conduct within the sphere of influence of the legislature. Those acts can only be punished by the legislature itself.
Selecting some key points from this discussion, the court said:
In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses.
Tenney, 341 U.S. at 378, 71 S. Ct. at 789 (footnote omitted).
and the court summarized by saying:
However, we reject the Board’s argument that our holding will exempt all legislators from the Code of Governmental Ethics when their actions may be within the legislative sphere. On the contrary, our holding herein does not exempt legislators from the duties imposed upon them in the Code; rather, it merely provides that any alleged violation of those duties occurring within the “legitimate legislative sphere” may not be questioned “elsewhere,” other than in the legislature. Thus, pursuant to LSA-Const. art. III, sec. 8, where a legislator’s actions within the legitimate legislative sphere, such as speech, debate, and voting on matters before the legislature, constitute an alleged violation of the Code of Governmental Ethics, the Board of Ethics is without jurisdiction to question or punish such action. Nonetheless, the legislator is not exempt from questioning and punishment for those actions. Instead, the power to question the legislator in such an instance is within the sole province of the legislature. LSA-Const. art. III, § 8.16
Considering the foregoing and based upon our conclusion that the Board of Ethics lacks jurisdiction to question the actions of Arnold and Heaton, which actions occurred in the legitimate legislative sphere, we are constrained to conclude that the Board of Ethics erred in denying Arnold and Heaton’s exception of jurisdiction ratione materiae. Accordingly, we are likewise required to grant the exception and dismiss the charges instituted by the Board of Ethics against Arnold and Heaton for their actions before the legislature of deliberating, debating, and voting on various bills in which their immediate family members had a financial interest.
So this decision by the First Circuit Court of Appeals gutted the Ethics boards power. They can no longer bring cases against any legislator for how they voted or acted in the legislature. They ruled that only the legislature can punish another legislature for misconduct.
On June 12th, 2008 the ethics board discussed in executive session the appeals court decision against them in the case of Representative Arnold and Heaton.
June 12, 2008 9:00 a.m. General Regular
G57. Docket No. 06-207 (Page GR0010)
Discussion in Executive Session of the Court of Appeal, First Circuit’s decision vacating the judgment of the Board and dismissing the charges issued by the Board against Representatives Jeffery J. Arnold and Alexander Heaton.link
So to summarize where we are:
The legislature violated the ethics laws (R.S. 1112 & 1120) of this state by voting to give themselves a pay raise.
Ordinarily the ethics board would be the appropriate place to file the complaint.
However, the ethics board is powerless to bring charges against them because of the First Circuit Court of Appeals Ruling in the case of Rep. Arnold and Heaton. The courts ruled that the legislature must punish themselves.
In any case, the ethics board has now dissolved into nothingness. There is no ethics board until its members can be replaced. Who gets to choose the new members?
And since a simple majority of the legislature was complicit in violating the ethics laws, what do you think are the odds of them voting to punish themselves for violating the law?
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Seven are appointed by the Governor. Four are appointed by the Legislature……Two by the House and Two by the Senate.
They choose nominees from lists provided by Louisiana private college presidents. The presidents have 60 days from the date of resignations to provide lists of names for each vacancy. The presidents must submit a minimum of three names per vacancy.
The Governor and Legislature then have 60 days to choose the nominees or the top person on the college presidents list becomes the automatic appointee.
So technically, it could take four months to replace the Ethics Board. Of course, what’s the use of having the board if they have no authority?
Nick: thank you for presenting this piece. I read all of the
legewatch.com commentaries. I usually reread them a second time and then the I begin to connect the dots….I can understand why Joe Six pack just doesn’t care or care enough to take the time to try to understand….
Allen said it in a post: No one in power wants ethics…..
I can imagine, for anyone outside of Louisiana, what they must perceive of our government with the present state of affairs…]’
then, I think of the Misery Index…..
Louisiana….the “state” we’re in….. what are we to do? Recall, rally, and stand up for democracy….I hope the power of the INternet is on our side……
Nick: Was there a “well planned conspiracy” to dilute (?) the powers of the Ethics Board; to force these resignations…Is this timing intentional by power hungry government officials? Is Jindal being vindictive because he was fined?
# lizon 29 Jun 2008 at 2:20 pm
Nick: thank you for presenting this piece. I read all of the
legewatch.com commentaries. I usually reread them a second time and then the I begin to connect the dots….I can understand why Joe Six pack just doesn’t care or care enough to take the time to try to understand….
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Boy, do I ever agree with this post liz…………..I feel like I need to go back to college and get a degree in Political Science……what a maze it is to wade through all this stuff and then it’s a whole nuther ball game trying to understand it.
I can understand why citizens (not just here but the whole U.S.) are unable to get involved even though they are upset with politicians and government in general. The minority that ARE able to comprehend the “mumbo jumbo” are not able to affect any changes simply because they are the minority.
And if the laws are not complicated enough…..the legislators continue to complicate them even more……what a tangled web they weave.
I wish government would subscribe to the K.I.S.S. principle……Keep It Simple Stupid!!!
Nick, by the way………this was an excellent piece!!
What stood out the most to me was that basically the LA First Court of Appeals deemed our legislators to be a “self policing entity” and that they should exercise “self-discipline”.
The court further stated that the “voters” must be the ultimate reliance for discouraging or correcting such abuses.
Part of why I was in agreement with the recall petitions was that, for once, we were going to hold someone accountable for their actions. In my dream world or “Monica-ville”, I would have recalled every legislator who voted for the pay raise; however, I understand that would not be feasible or be a sensible way to address the situation. Which is why the recall of a few key players appealed to me. Unfortunately, I have been told that if Jindal veto’s SB 672 that the recall petitions would be dropped by those in charge. I disagree with that. I feel that we have to somehow make the legislators realize that we are serious about what we expect from them. Some may say, “Well, you can’t teach an old dog new tricks,” but I say to that, “Well, get a new dog”. I believe that the recall petitions will allow us to do just that. I believe that now is the time.
monica………..I agree whole-heartedly with you. At this point, I don’t care what direction Jindal goes with SB672………I think the recall petitions that have been formally filed need to be followed through on. If we back down now……..it sets a precedent. Everyone needs to keep in mind why they were filed to begin with. If the petitions are rescinded…..current politicians & future ones will not forget it and any future recalls will be laughed off the planet, they will not be taken seriously.
G8trgirl……I was very unhappy when I was informed that the recalls would be dropped if Jindal veto’s SB 672. I think if Jindal does veto the bill, those of us still interested in pursuing the recall petitions will have to get very organized in order to continue. I truly believe that those of us who are lucky enough to be informed or have the time to become informed have an obligation to fight/speak for those who cannot speak for themselves. This is bigger than most of us envisioned when we started surfing the net in anger, but it is what needs to be done. It’s just the right thing to do for our families and our communities. Lastly, I believe that when I was informed that the recalls would be dropped I was told, “Come on, its (a successful recall petition) never been done in the state of Louisiana,” My only reply was, “That is exactly why it has to be done”. And, I think we’re just the people to do it.
I have it on good authority that the true reason the members of the ethics board resigned was to avoid filing their own financial disclosure. If they resign before July 1, they will not have to complete the required disclosure. After that date it is too late. Their timing makes this obvious.
Were the board members not aware, prior to accepting their positions, that they would have to submit personal financial disclosure? Do they all have something to hide?
No, the members of the Ethics Board did not know that they would have to file their personal financial information, since that bill became law in one of the sessions in the spring.
The financial disclosure clause was just instituted in the recent regular session. Plus, it might not be that they have something to hide, rather they would prefer to maintain a measure of personal, financial privacy
No, they were not aware, most of them were appointed before Jindal. They resigned simply for one reason, so they would not have to disclose their income. It is the same reason why the last executive director quit, the law applied to him before the members.
The Ethics board is called just that, it is not called the Legislative Ethics Board. The speech and debate clause (LSA-Const. art. III, sec. 8 )has been around in legal documents since the 1800’s in England. It is so no one branch has the authority over another, part of the balance of powers, the same reason why the Gov. has VETO power. The ethics board is a divsion of the executive branch, the reason why they should not be able to judge a legislator on what he or she says or does during a legislative act. They still have all other powers with regards to disclosure and campaign finance laws.
You know, there are OVER 500 “boards” in this state…….are each and everyone of those board members going to have to disclose personal financial information?
It sounds like it’s getting to the point of being absurd…..NOBODY is going to want to serve on ANY board with the current disclosure laws that are in place. I, personally, would not care to disclose that information just because I was serving as a board member on some state committee. Boards simply monitor, report and make suggestions…….they are not making laws.
# Westbankeron 29 Jun 2008 at 6:44 pm
The ethics board is a divsion of the executive branch, the reason why they should not be able to judge a legislator on what he or she says or does during a legislative act.
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You seem knowledgeable……who IS able to judge our legislators? If someone has a “beef” with what’s going on with our esteemed lawmakers…………who does one talk to? Where does one “file a complaint”?
Our main option is what we are doing now. Trying to get the governor to VETO the bill.
So, if we get the veto then what?
Jindal has so many problems right now he doesn’t know what to do:
fromhttp://www.nola.com/news/index.ssf/2008/06/
jindals_legislative_director_r.html
Jindal’s legislative director resigns
by Robert Travis Scott
Sunday June 29, 2008, 6:41 PM
Gov. Bobby Jindal’s legislative director has resigned after serving fewer than six months with the new administration, which is embroiled in a controversy over the Legislature’s large pay raise.
Between payraisegate, the ethics board and now this……even his advisors have got to be ripping their hair out.
I am loving this..and the plot thickens and Jindal’s skin gets thinner…..
That is a good question. What next indeed.
We would have to agree on the next step.
Some of the Options are:
1) Filing a suit in court challenging the constitutionality of the law.
Several pundits have weighed in on the ponts that could be made. I think that the only option with merit is to have the courts to declare the vote invalid because the legislature was obligated to recuse it self from voting due to the conflict of interest.
We could possibly file an injunction ahead of the law going into effect. However, this would be wasted money if Jindal does VETO the bill.
2) Filing complaints against each and every legislator who voted for/against this bill with the ethics board.
The ruling in the matter of Arnold and Heaton may not be final. The Ethics board did appeal the case to the Supreme Court. The Supreme Court may overturn the decision of the appellate court. I am assuming here that the Supreme Court did agree to hear this case.
3) Demanding a special session, the purpose of which is solely to allow the legislators to rescind this vote.
4) Seeking to recall each of the legislators who passed this law.
As the ‘recall tucker’ group recently found out, you must be a constituent of the representative you are seeking to recall.
The recall efforts will take a lot of effort and organization. We need 1/3 of all the registered voters. Given that only 50% of voters are active, this translates into about 2/3 of the people that normally vote. A VETO by the Governor would probably take the wind out of these sails as it would then be a dead issue for many.
5) Organizing and replacing our elected officials in the next election cycle.
6) Both the Senate and House have rules for disciplining members. For example:
http://www.legis.state.la.us/lss/lss.asp?doc=330184
I don’t think these rules have ever been exercised.
Perhaps, you have already visited between-lines.com. If not, go there and scroll down all the way to the links on the left side…link to Louisiana Legislative Log posted by Jeff Sadow. I have been reading thru the regular session April, May, June..very very interesting…..
3) Demanding a special session, the purpose of which is solely to allow the legislators to rescind this vote.
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Okay, I pick this one. At the same time, we need to encourage them to introduce ANOTHER bill that prohibits them from establishing their own salaries, etc. Who will set the guidelines for that? I dunno………it’s something to think about.
That link didn’t work for me. Let me try and repost it.
http://www.nola.com/news/index.ssf/2008/06/jindals_legislative_director_r.html
thanks for posting the link Nick (i stink at that kinda stuff).
Anywho……looks like Jindal’s worry’s are growing. One can’t help but question what is truly going on in BTR.
I like your choice.
WDSU showed Jindal on one of the talk shows….he was carrying on about how Obama needs to be a maverick in the Demo party like McCain is in the Rep. Party…Who cares? I did not see the show..I wonder if Swin–dal was asked if he would veto the SB672!! If he was asked, I am sure he gave his 3-point mantra……I hope he looked like a fool…
Liz — as far as I know, nobody in the national media is covering any of this stuff. The only mention I have heard thus far was made by a woman from Lafayette who called in to Hannity’s radio show on Friday afternoon. Jindal is the new conservative golden boy, and apparently the national media doesn’t want to tarnish him (at least not yet).
http://transcripts.cnn.com/TRANSCRIPTS/0806/29/le.01.html
Here’s a portion of Candy Crowley’s interview with Jindal on CNN
which aired June 29, 2008. Apparently some of the national media is aware of the situation. He basically talked in circles about it though and she didn’t have time to really press him on the issue:
CROWLEY: Governor, we’re running out of time here, so I wanted to turn my attention just to you. You have said, in Louisiana, that you will not stand in the way of a doubling of legislators’ pay. You’re taking a lot of heat for that back home.
How does this jibe — allowing legislators to double their pay, how does that jibe with your role as a conservative?
JINDAL: Well, I still think the pay is excessive. We still actually have over a week before that law goes into effect.
CROWLEY: But why wouldn’t you block it, then, if you think it’s excessive?
JINDAL: And we’re actually working with legislators to show them that this is wrong. There is still time to make sure this doesn’t happen. They can still sign affidavits to turn down this pay raise. I do think it’s excessive. I think it’s wrong. I don’t think any pay raise should go into effect until after the next election. So…
(CROSSTALK)
CROWLEY: But you could stop them, couldn’t you? You could veto this.
JINDAL: Well, and there is still time to stop them. We still have a week. And we still have many options to make sure that we don’t see legislators take a pay raise that would be more than double what they currently make. I think that’s excessive.
Again, I don’t think any pay raise should go into effect until after the next election. The good news is we still have time to stop this excessive pay raise. And we’re working with legislators on many options to stop that, over the next week.
G8trgirl: thanks ..you are so smart..how do you find this info. I am trying not to read too much into the comment of this “man of his word”!! so what is really going on..Is Jindal trying to be the man of the hour by forcing them to ask him in a public announcement to veto the bill or will he just veto it?
So, I hope the mad constituents are ringing the phones and sending the emails…..
The press needs to tell the public to do write and call legislators
[...] On why the Ethics Boad quit - the other shoe Attorneys for the lawmakers have argued that their participation is protected by the constitutional right to free speech, and that only the House had the authority to punish them. The case In re Arnold, No. 2007 CW 2342 (La. App. … [...]