Our Views: Keep ethics code tough

• Published: May 11, 2008 - Page: 8B - UPDATED: 12:05 a.m.

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Gov. Bobby Jindal is touting his ethics reforms, from the capital of illusion in Hollywood to, well, the other capital of illusion in Washington, D.C. Now, though, there’s a serious question whether enforcement of the shiny new reforms will be an      illusion — undermined by decisions of Jindal’s own lieutenants in the Legislature.

The governor appears to be having it two ways: reforms in the media releases, obstacles to enforcement in the legislation.
Both problems arise from the rushed special session on ethics early this year.

One issue is the decision to add another layer of lawyers to the enforcement process by removing from the Board of Ethics the actual decision of who is in violation of ethics laws. Under the Louisiana Constitution, that was placed with the board. Jindal legislation requires that administrative law judges rule on cases brought before them by the board.

We don’t know yet whether that new process will be a barrier to enforcement, but it does replace a one-step process with a — no pun intended — two-step process. Our worry is that this change was pushed by legislative leaders as a way of “over-lawyering” what ought to be a direct and relatively simple one-stage administrative process.

The second issue is the burden of proof in ethics cases.

The Jindal administration’s Senate floor leader on the issue amended the bill adding the administrative law judges to the process.

The amendment raised the burden of proof on the ethics board when it seeks to enforce the ethics code. The new “clear and convincing” standard of evidence is much tougher to meet than the old standard of “reliable and substantial” evidence of a violation.

Now, as the governor says of himself, we’re not lawyers. But the ethics board’s chief lawyer says the new standard raises the bar for evidence and is going to be difficult to meet in complex cases. Simple cases, such as filing a campaign report after the deadlines, will be easily enforced. It’s the more difficult cases that might be harder if not impossible to prosecute under the new standard.

And, we note, it’s the more difficult cases that politicians are concerned about. Almost no one takes a political hit from late filings or paying a small fine to settle that kind of violation. The Public Affairs Research Council said the new standard “seems to be an attempt to undermine the recently strengthened ethics laws.”

PAR surveyed 39 states with ethics boards and found 18 used the “reliable and substantial” standard or something easier to prosecute. Only nine used the “clear and convincing” standard, and two used a tougher standard similar to that in criminal cases.

“The three-word change was inserted into the controversial ALJ (administrative law judges) bill as a late amendment that was added with little debate,” PAR noted. “Many legislators who voted for the change likely didn’t understand its impact.”

We wonder about that. The Senate amendment was proposed by the administration’s floor leader, a former judge. We don’t see how the administration can disavow this change as a mistake.

Jindal frankly has dodged this issue. “I’m not a lawyer,” he said at a press conference, saying that the lawyers — presumably, the lawyers in the Legislature — should come to some conclusion about the matter.