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Gray Areas: Every State Handles Ethics in Its Own Way

By Kelley Griffin | Sept. 19, 2022 | State Legislatures News | Print

Perhaps it’s no surprise that Doug Himes, the Tennessee House ethics counsel, had a Jack Daniels case last year.

No, not that kind of case—an ethics case. Tennessee is home to the famous Jack Daniels Distillery, which, like any large business, likes to connect with lawmakers. 

Himes says one of the company’s efforts to do that during COVID raised ethics questions. The distiller invited lawmakers to a virtual gathering, but guests also could pick up very real goody bags from a company truck parked at the Capitol. The bags included a fifth of whiskey. Himes told a meeting at the NCSL Legislative Summit in Denver that as soon as the gift bags were distributed, he started getting calls from lawmakers wondering about the booze. 

No one thinks the Brown-Forman Corp., which owns Jack Daniels, violated rules on the books, which allow for gifts under $65; and companies can offer food and drink at receptions for lawmakers. But something about having a fifth of a gallon to take home made the state ethics commission issue new guidance: Alcohol can be handed out only in amounts that could be reasonably consumed at an event. So much for the free fifths. 

In the end, no harm. As ethics leaders from South Carolina and Kentucky joining Himes on the Summit panel say, many ethics questions they deal with come from well-intentioned staff, lawmakers or lobbyists trying to make sure they don’t run afoul of the rules. Sometimes that means reevaluating whether the rules still make sense. 

Many Approaches to Oversight

The topics ethics officials address run the gamut: election expenditures, lobbying contacts or gifts, potential conflicts of interest between lawmakers’ professions outside the statehouse and bills under consideration. Ethics offices also manage complaints of harassment and workplace discrimination, though in some cases those are referred to other agencies.

There are many versions of ethics oversight, as seen in an NCSL roundup of ethics approaches. The panelists say a range of approaches can work if they embody some key concepts. 

An ethics committee should evenly represent the parties to optimize trust in the system.

An ethics committee (or what’s often known as a commission if it operates outside of the statehouse) should evenly represent the parties to optimize trust in the system, they say. 

J.J. Gentry, counsel for the South Carolina Senate, says the state passed a law in 2016 establishing an outside ethics commission so that the Senate and House weren’t solely in charge of handling ethics questions for their members.

“People realized that sounded like it was the fox guarding the hens, so it wasn’t a good optic,” Gentry says. “But the Legislature did not want to give up full control over the final decision.” As a result, the commission makes the initial determination whether a complaint should be further explored, then turns it over to the appropriate chamber, which holds public hearings and makes a final decision. 

The process for filing complaints varies by state, but the panelists agreed it is important to encourage access while also discouraging careless claims or attacks. To that end, the states don’t allow anonymous ethics charges.

In South Carolina, that means the person filing a complaint must have personal knowledge of the alleged ethics violation and sign under oath.

“I get lots of people who call me up, want to file a complaint and ask, ‘How do I go about that?’  I explain the procedures and when I get down to the part where I say, ‘Oh, by the way, you have to put your name on it, it is not confidential and the member will know you’re filing this against them,’ they hang up,” Gentry says. He says people don’t understand he doesn’t have the capacity to investigate from scratch; complaints must contain specific allegations. 

Himes says Tennessee requires two lawmakers to file a complaint, and at least one of them must have direct knowledge of the alleged violation. 

Confidentiality Is Crucial

Laura Hendrix, executive director of the Kentucky Legislative Ethics Commission, says people can file complaints based on information from a newspaper report, not necessarily their own knowledge of a case. 

“That being said, the commission has also said it’s a little bit less weighty than somebody who has directly observed somebody getting a bag of cash,” she says.

The panelists agreed that before they find probable cause and an ethics charge becomes public, confidentiality is crucial. Gentry says states should have “penalties, penalties, penalties and enforcement of those penalties. In our statute, it says if someone tries to use the complaint filing process as a weapon, filing frivolous complaints and things like that, there’s a penalty for doing so. And if someone abuses it by filing too many complaints, they can get a complaint filed against them by the committee itself.” 

One other key duty of an ethics office, these panelists say, is to train legislators and their staffs, to equip them to monitor their own actions and remind them that if they have any doubt about whether something is ethical, they should get advice from their ethics officers. 

Kelley Griffin writes and edits for NCSL.

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