Ethics board warned Jindal

• By MARK BALLARD
• Advocate Capitol News Bureau
• Published: May 18, 2008 - UPDATED: 12:05 a.m.

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Eleven days prior to signing the ethics bill into law, the 10-member Louisiana Board of Ethics warned Gov. Bobby Jindal that a last-minute change of wording threatened its ability to enforce the governor’s “gold standard” of reform, according to documents acquired by The Advocate through a public records request.

“The last-minute adoption of a ‘clear and convincing’ standard of evidence in a civil proceeding raises legal questions that will be litigated for years,” the board members wrote Jindal, adding that the provision was added “without discussion or consideration of the Board’s operating procedures.”

The board asked to meet with the governor “for an opportunity to share with you the reasons we believe this will not be good for Louisiana.” The board’s March 3 letter was never answered. Jindal signed the legislation into law on March 14.

State Sen. Bob Kostelka, the Jindal ally responsible for the change that concerned the Ethics Board, responded in a May 12 letter disapproving of the board’s private request for a veto and for its public questioning of the wording’s impact.

Writing to the board’s administrator, Richard Sherburne, Kostelka, who chairs the Senate and Governmental Affairs Committee, wrote: “I must question the authority for you and the Board of Ethics to question specific legislation, particularly that which has already been passed by the Legislature and signed into law by the governor, other than to provide information, but not personal opinion, when requested by an executive branch agency or the Legislature.”

Of the board’s request for a veto, the Monroe Republican wrote “that letter seems to have been asking the impossible of the governor, since it was requesting him to veto a portion of the ethics legislation that he had called for in that special session.”

In a little-noticed move during the final days of Jindal’s first special legislative session in February, Kostelka amended the standard needed to show a violation of the ethics code from the easier-to-prove “reliable and substantial” evidence to the more difficult “clear and convincing” standard.

The technical legal term refers to the quantity and quality of evidence required to convince a judge or jury whether a claim is true.
The Public Affairs Research Council and other critics contend that “clear and convincing” proof would be excessive and would slow the prosecution of ethics cases. The higher standard takes effect on Aug. 15.

Jindal did not respond to a request to discuss the correspondence.

Jindal’s press secretary, Melissa Sellers, forwarded a prepared statement quoting Jimmy Faircloth, Jindal’s executive counsel.
“Legislators made this language change and if the board feels this change is inappropriate they should make their case to legislators,” Faircloth stated. “It is important to note that the Administration’s budget more than doubled the Ethics Board’s funding, provided them every dollar they requested, and the Administration remains committed to fully funding any reasonable request for additional resources for the Board.”

Sherburne noted that the estimates for the Ethics Board’s budget were made prior to Kostelka’s stiffening of the evidence standard. The Ethics Board cannot lobby the Legislature, but only provide information when asked, he said.

That was the purpose of Sherburne’s four-page letter on May 5, which was requested by Kostelka.

Noting that standards of evidence are neither good nor bad, Sherburne likened the standard of proof change to putting a truck tire on a subcompact car. The small car’s transmission, suspension and body are not designed to work with the 36-inch tire that a truck uses.