Ethics complaints rarely end in discipline

FRANKFORT — Kentucky spends close to $500,000 a year on a Legislative Ethics Commission that has dismissed 20 of 21 ethics complaints filed against legislators over the past decade.

The nine-member commission — chosen by the House speaker and Senate president — says it seldom needs to punish legislators because they faithfully obey the ethics laws. In fact, its chairman says he'll lobby for tougher criminal penalties against citizens who file complaints that seem frivolous or politically based.

An average of two ethics complaints a year have been filed against legislators since 2000. They typically allege that legislators used their public office to benefit themselves privately or that they improperly raised campaign funds from interest groups or lobbyists.

The public can be too cynical about its legislature, said Anthony Wilhoit, who the legislature pays $117,540 a year as the commission's executive director.

"I'm not saying that nobody does anything wrong in our General Assembly," Wilhoit said. "But the FBI has been investigating legislatures in other states, not here. You tell me why that is."

However, some critics — including former ethics commissioners and staff — say the agency became a toothless watchdog when legislators remade it in 1996.

In the three years before that, the commission opened nearly 30 investigations, mostly on its own initiative, leading to reprimands and other punishments. Now, virtually nothing happens unless a citizen files a complaint.

"They don't take any actions or seriously pursue any investigations anymore," said Charles Luker, a retired circuit court judge who served on the panel until 1996. "The ethics commission was a good idea, but it didn't amount to anything in the end. The legislature really didn't want to be watched."

One of the legislature's advocates for cleaner government, Rep. Jim Wayne, D-Louisville, said lawmakers call the commission for advice, such as whether it's acceptable to vote on a bill that could profit them personally or take a free trip from an interest group.

Wayne said the commission sometimes applies a lower standard to these queries than he prefers. He said he has ignored the commission's thumbs-up and abstained from votes or rejected trips based on his own moral code.

Part of the problem is Kentucky's ethics laws, which permit behavior from legislators that strikes most citizens as questionable, Wayne said.

The state constitution forbids lawmakers from acting on bills in which they hold a personal interest. But various legal interpretations have said that they can push legislation that benefits them personally as long as it could benefit others as well.

So a car dealer in the House can sponsor bills that help car dealers, and a senator can fund a state project and then privately win contracts from that project back home. The Herald-Leader reported last year that more than one in five lawmakers sponsored measures that would directly benefit their outside businesses, investments, employers or industries.

Many legislators defend the practice by arguing that they are part-time citizen-lawmakers, entitled to make a living just as anyone else is.

But these frequent conflicts of interest erode confidence in the ethics commission, Wayne said.

"A lot of the time, actions that would be perceived by the public as clearly unethical are not found to be violations by the ethics commission because they set the bar so low for us," he said.

Senate President David Williams said he has no problem with the ethics commission. But he agrees that the ethics laws should be tightened to prevent lawmakers from enjoying private-sector deals that are tied to their actions in the General Assembly.

"I would like to put in restrictions," said Williams, R-Burkesville. "I don't think members of the legislature should be hired by state universities, which we fund, for instance. I have problems with members doing public bond work when they're directly involved in state appropriations on public projects."

Ethics law backlash

The legislature established the ethics commission in 1993 in response to the Operation BOPTROT scandal that exposed 15 current or former lawmakers selling their votes.

Originally, ethics commissioners were independently nominated by the attorney general, the state auditor, the Judicial Retirement and Removal Commission and the Kentucky Registry of Election Finance. Several retired judges ended up on the panel.

The commission could pursue whatever it chose — acting on anonymous tips or stories it read in the newspaper — and it was not shy.

It opened nearly 30 investigations in three years. Two led to public reprimands and five to private reprimands. It sent one case — the failure of Rep. Richard Turner, R-Tompkinsville, to report $3,000 he took from a lobbyist — to the House for further action. The House stripped Turner of a committee seat and ordered him to publicly apologize.

By the time the 1996 General Assembly began, lawmakers were complaining about the scrutiny. They voted to change the commission.

First, they changed the makeup of the panel, eliminating outside nominations. Now House and Senate leaders can name who they want. In recent years, they chose former legislators (Ray White and Pat Freibert), political party activists (Bob Fulkerson) and major campaign contributors with whom they are acquainted (Deborah Jo Durr and Norma Scott, who with their husbands paid about $250,000 combined in political donations before joining the commission).

Second, they prohibited the commission from opening an investigation unless a citizen files a signed, notarized complaint. (In rare instances, the commission's enforcement counsel will file a complaint himself.) Citizens are warned that a knowingly false complaint is a crime that can bring a year in jail; they are asked to travel to Frankfort to appear at hearings.

Almost overnight, tips about legislators dried up, said Earl Mackey, the commission's original executive director. Mackey, a former Missouri lawmaker, had been hired after running the National Conference of State Legislatures.

"Most people are extremely reluctant to come in and sign their name to a complaint against someone who may be very powerful in their community, someone who may control the flow of money locally," Mackey said. "There is a very real possibility of reprisal."

"Now the ethics commission can sit there and do nothing in the face of legislative scandals and say, 'Well, nobody swore out a complaint to us,'" he said.

Mackey and most of the commission resigned to protest the changes.

"They emasculated us when they changed the law," said Luker, a commissioner until then. "They removed any authority we had to do anything."

Originally, Kentucky had perhaps the strictest state legislative ethics laws in the country, said University of Florida political scientist Beth Rosenson, who published a book in 2005 called The Shadowlands of Conduct: Ethics and State Politics.

By so quickly eroding the ethics commission, Kentucky went against the general trend of states toughening their laws over time.

"I remember thinking it was pretty extreme and (gutsy) of the legislature to do that," Rosenson said.

Less prosecution

Since 2000, the commission has dismissed nearly all ethics complaints filed against legislators, including House Speaker Greg Stumbo, D-Prestonsburg, and Williams, the Senate president.

The sole sanctioned lawmaker was Rep. Tom Burch, D-Louisville, who early this year fined $500 for using his House letterhead to contact judges in a parental-rights case. Burch acted "contrary to the public interest," the commission ruled. However, even as it fined him, it praised him for having "good intentions to help a person in need."

"Your efforts are to be commended," commission chairman George Troutman told Burch at the hearing. "But sometimes the way you go about them causes problems."

The commission, which has a full-time staff of four and rented offices just outside Frankfort, describes its role as more education and less prosecution. The constant investigations of the commission's early days were a mistake, Troutman said last week.

"BOPTROT happened and there was an immediate overreaction," Troutman said. "They went pretty far with the ethics law."

"It's not our job to go out and try to seek out these complaints, to look for problems, any more than it's a judge's job to seek out criminal offenses," he said.

Commissioners point to an ethics seminar on state laws that they host for lawmakers at the start of legislative sessions. Guest speakers are flown in from around the country, including political scientist Norman Ornstein in 2007. The commission paid him $5,000.

The law mandates that legislators attend. But many skip the seminar. The year that Ornstein spoke, for example, more than one-third of the Senate missed some or all of the seminar.

Asked at the time about absent lawmakers, Wilhoit said, "We certainly would prefer that people be physically present." Still, they can borrow tapes of the seminars and listen to them later, he said.

Legislative leaders say they're satisfied with the commission and think the lack of punitive action is proof of their ethical behavior.

"The General Assembly operates under some of the most stringent ethics rules in the nation," Stumbo said. "The main reason why there have been few complaints is because Wilhoit and his board and staff have always been accessible to all legislators and have helped steer them down the correct path."

This story was originally published October 18, 2009 at 12:00 AM with the headline "Ethics complaints rarely end in discipline."