Does Punishment Fit the Crime? State Penalties and Prosecution for Ethics Violations
By Cassandra Kirsch | Vol . 22, No. 14 / April 2014
Did you know?
- Receipt or solicitation of a bribe by a public official is categorized as a felony in all but seven states.
- Only 29 commissions can prosecute criminal violations of state ethics laws.
- In 46 states, only specifically defined conflicts of interest are categorized as felonies.
Early in American history, our Founding Fathers recognized the need to protect the legislative process from interference, including by other branches of government. These concerns were spelled out in various provisions of the U.S. Constitution, from Article I, Section 9, Clause 8, which restricts government officials from receiving gifts from foreign states without the consent of Congress, to Article I, Section 6, Clause 2, which prohibits a senator or representative from holding any other federal office while serving in Congress.
The need to protect the legislative process has also concerned the states, with many building penalties for unethical behavior by government officials into their laws and creating ethics oversight agencies to enforce them. However, states conceptualize corruption differently. Inappropriate conduct by a public official may be a felony in one state and a misdemeanor in another.
The philosophy underlying felony crime classification is that the nature of the crime is so serious it threatens society and warrants removing certain civil rights, such as the ability to carry firearms and vote. While most states have comprehensive ethics laws and commissions to enforce these laws, no consensus exists as to which punishment fits the crime. Although state aproaches vary greatly, penalties for ethics violations are addressed in at least three categories: bribery, conflicts of interest and confidential information
Bribery. Receipt or solicitation of a bribe by a public official is categorized as a felony in all but seven states—Idaho, Iowa, Maine, Maryland, Montana, New Jersey and Vermont. In these non-felony states, bribery is punishable by a minimum of one year’s imprisonment and a $1,000 fine. In New Jersey, receiving bribes totaling $200 or less is punishable by three to five years in prison and a fine of up to $15,000; prison time and the maximum fine jump to five to 10 years and $150,000, respectively, for bribes of more than $200.
Conflict of Interest. Generally, a conflict of interest occurs when a public official’s personal interest is at odds with the public’s interest. Ethical issues arise when public officials choose their personal or financial interest ahead of the public’s, such as when the official reaps a monetary or other reward from a decision made in his or her public capacity. At least four states—Arizona, Connecticut, Pennsylvania and Utah—penalize general conflict of interest violations as felonies.
Pennsylvania categorizes any conflict of interest violation as a felony, punishable by a fine of up to $10,000 and/or up to five years in prison. Violation of conflict of interest laws in Arizona, likewise, is a felony, but only when it is both intentional and knowing (rather than negligent or reckless), giving rise to a much higher burden of proof.
Connecticut and Utah require a monetary threshold to be met before a conflict of interest violation becomes a felony. In these two states, the action must be either a first offense in which the financial benefit is $1,000 or more, or a second offense. In Utah, the violation also becomes a felony if the gain is more than $250 or the public official has been convicted twice previously for breaking a conflict of interest law.
In the remaining 46 states, only specifically defined conflicts of interest are categorized as felonies. In Ohio, it is a fourth-degree felony for public officials to authorize a public contract in which they, a member of their family or any of their business associates have an interest. In Alabama, it is a felony for a legislator to vote in a matter in which he or she has a financial interest.
Confidential Information. Public servants and elected officials often are privy to confidential information, including personal information about constituents. Citizens expect public officials to safeguard this information and not share it or use it to gain an unfair advantage. At least 11 states punish ethics violations relating to confidential information as felonies. Alabama, Arizona, Connecticut, Florida, Kentucky, North Dakota, South Carolina and Utah punish both the disclosure and misuse of confidential information. In Alabama, Arizona and Connecticut, both misuse and disclosure violations must be committed either intentionally or knowingly. Four states—Colorado, Indiana, Tennessee and Texas—punish the misuse, but not the disclosure, of confidential information.
Arizona, Connecticut, Utah, South Carolina and Kentucky limit confidentiality violations to those resulting in financial gain. South Carolina and Kentucky also include financial benefits to family members as grounds for conviction. In Florida and Kentucky, punishment results only.
when public servants obtain confidential information in their official capacities and then use the information inappropriately.
Enforcement. Nearly all ethics commissions have the power to investigate complaints, but only 29 commissions can prosecute criminal violations of state ethics laws. In some states, the commission can prosecute for ethics violations, but must refer cases to the appropriate prosecuting authority if the violation is also criminal. Four states—Florida, Michigan, Ohio and Oklahoma—prohibit the ethics commission from levying sanctions for violations. In cases where the ethics commission cannot prosecute, the commission often can issue a ruling, but then discretion is given to the attorney general’s office or inspector general to pursue further action.
Budget and staffing limitations can also affect a commission’s ability to enforce ethics laws. The Pennsylvania Ethics Commission takes in an average 350 complaints annually, but funding permits only five full-time investigators. Likewise, funding for the Colorado Independent Ethics Commission supports only one full-time position.