Preventing frivolous, unfounded ethics complaints, especially during election season, helps keep politics out of the process.
By Peggy Kerns and Cassandra Kirsch
Hard at work on his reelection, a legislator gets hit with an accusation of an ethics violation. It’s just weeks before the election. Fair fight or dirty politics?
During the election cycle, state ethics commissions are often faced with this question. Commissions are protective of their role of oversight of ethics laws, so are especially vigilant about keeping politics out of the complaint process.
They take a variety of approaches, including 11 states that impose blackout or cut-off dates or other restrictions on the filing of ethics complaints during the election cycle. These states are Alaska, Florida, Georgia, Missouri, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and Wisconsin.
The Power of Accusations
Because a filed complaint entails at least a preliminary investigation, proponents of such laws say accusations of an ethical violation, if unfounded and frivolous, can destroy a campaign, especially when it comes too late to defend against it.
Critics, however, question whether bans or restrictions are the right response. Do the bans assume all complaints filed during an election are politically driven? Shouldn’t justified complaints be part of the political debate during a campaign?
Alaska, in 1998, was one of the first states to pass legislation “to prevent the politicization of the ethics process,” says Joyce Anderson, former administrator of the Alaska Select Committee on Legislative Ethics. The law prohibits filing an ethics complaint against a legislator or legislative employee running for state office within 45 days of a primary election through general election.
In general, the bans vary mostly in their time frames. In Oklahoma, the Ethics Commission bans filing complaints from the first day the Election Board accepts declarations of candidacy until after the General Election. The commission itself, however, may initiate and investigate complaints. Georgia begins its ban 30 days before the election, South Carolina’s ban begins 50 days before, and in West Virginia it’s 60 days. Utah bans filing complaints as well, but only against candidates who have an opponent.
File but Don’t Disclose
Texas does not have a specific blackout date, but the state Ethics Commission may consider “the timing of the complaint with respect to the date of any pending election in which the respondent is a candidate or is involved with a candidacy” in deciding if it is frivolous. If the complaint is found to be unwarranted and brought in bad faith or for the purpose of harassment, the commission may impose a civil penalty of up to $10,000.
The Tennessee Bureau of Ethics and Campaign Finance will accept a complaint at any time, but restricts disclosing a complaint filed against a candidate “during the period from 30 days immediately preceding the commencement of voting for that election through Election Day.”
Caution Ahead Even Without Laws
Even without laws, state ethics commissions are cautious about accepting ethics complaints during specific times in the election year.
Several years ago the Kentucky Legislative Ethics Commission faced an increasing number of ethics complaints from candidates and political parties right before the elections—“not an overwhelming amount, but enough to get the ethics commission’s attention,” says Anthony Wilhoit, executive director of the commission.
Even though Kentucky law requires the commission to keep complaints confidential until after a preliminary hearing, the accusers weren’t waiting and were disclosing the names of alleged violators. In response, the commission asked the General Assembly for statutory authority to dismiss a complaint—any complaint, not just those during the election season—if the filer makes it public.
The proposal failed to pass both chambers, however. “We got push-back from the media,” Wilhoit says. “The media wants the entire process, from filing to resolution, to be transparent.” The commission chose to focus on its own process of being able to dismiss complaints promptly if they are frivolous.
“The commission does not get drawn into campaigns and will not comment, but all complaints are investigated,” says John Schaaf, the commission’s legal counsel.
In the Final Days
The final days of a campaign are important times for candidates and the public. Citizens and the media argue they need to know about candidates’ ethical violations in order to make informed decisions.
Allegations of ethical misconduct, especially if frivolous, however, can be damning. Negative headlines and Internet chatter can overshadow the investigation itself. Often, ballots must be cast as unproven accusations linger, leaving the accused candidates little opportunity to defend against the complaints.
Ethics commissions want to protect the integrity of the complaint process against misuse. At the same time, they acknowledge their responsibility to give the public information to make informed election decisions.
Balancing these concerns is the challenge.
Rules on Filing Ethics Complaints Before Elections
ALASKA requires the ethics committee to return complaints to the filer if they were filed during a campaign against legislators or legislative employees who are running for state office.
FLORIDA prohibits complaints from being filed or disclosed against candidates starting 30 days before an election.
GEORGIA prohibits the ethics commission from investigating any complaint against a candidate filed within 30 days of an election.
MISSOURI limits certain kinds of complaints against candidates 60 days before primary elections and all complaints within 15 days of primary or general elections.
OKLAHOMA restricts the ethics commission from accepting complaints against candidates beginning when the Election Board accepts declarations of candidacy.
SOUTH CAROLINA restricts complaints against candidates within 50 days of an election.
TENNESSEE restricts the ethics commission from verifying filed complaints or investigating new ones within 30 days of an election.
TEXAS directs the ethics commission to follow interpretations of the state civil procedures’ Rule 13, which allows consideration of the timing of a complaint with respect to an election.
UTAH restricts filing complaints against candidates with opponents 60 days before an election.
WEST VIRGINIA restricts the ethics commission from accepting or initiating complaints against candidates who are public officials or public employees 60 days before a primary or general election.
WISCONSIN prohibits the filing of complaints against candidates beginning 120 days before a general or spring election.
Source: NCSL, May 2014
Peggy Kerns directs NCSL’s Center for Ethics in Government. Cassandra Kirsch is a law clerk who works for NCSL.