New Times: "Toothless" Commission on Ethics Gives Legislators Something to Chew On

[UPDATED] "Toothless" Commission on Ethics Gives Legislators Something to Chew On
By Thomas Francis in Florida, Politics
Mon., Dec. 14 2009 @ 9:37AM

The political scandals in Broward County have roused the Florida Commission on Ethics from its comatose state. An outfit derided as "toothless" is asking the Florida Legislature to give it a new set of chompers with which to discourage corruption, the St. Petersburg Times reports. There are several items on the commission's holiday wish list, but this is the big one:

Lowering the burden of proof for a violation, from the current standard of clear and convincing evidence to a preponderance of the evidence.

In essence, that's the difference between a commission that exists mainly for symbolic purposes (as the current one) and one that can perform its stated mission of discouraging political corruption.

The paper talked to an attorney, Mark Herron, who used to serve on the commission and now defends politicians who are investigated by the commission. (Cute little reversal, isn't it?)

"By reducing the burden of proof, you're doing a disservice to the entire process," Herron said. "If you're going to damage someone's reputation and call them a corrupt public official, you ought to have a clear and convincing standard."

In other words, if you only have a preponderance of evidence pointing to a politician's guilt, then that politician should be exonerated.

Because that is the effect. Here's how the process currently works. A complaint is filed against a public official -- the commission gets some 200 per year. Each is assigned to one of the commission's six investigators. Those investigators can subpoena documents and take sworn testimony, though with a huge caseload, they have to do a cursory job of it.

The Florida Attorney General appoints two attorneys to act as "commission advocates," who look at investigators' reports and decide whether that "clear and convincing" standard has been met. It's at this crucial point where a crooked politician can wriggle off the hook.

Because even if that complaint produces a "preponderance of evidence" pointing toward guilt, it's not enough. According to spokeswoman Kerrie Stillman, the commission received 208 complaints last year, 81 of which were at least valid enough to be presented at probable cause hearings. Of those, only 23 were found to have a chance of meeting that "clear and convincing" standard. The rest -- 58 complaints -- were tossed.

You can bet there was some crooked pols in that batch, all breathing a sigh of relief, all able to tell voters they'd been cleared by the ethics commission. Those politicians could then resume their corrupt activity with a fresh feeling of invincibility.

Of the 23 cases that established probable cause, 11 cases collapsed before they could make it to the final stage: a hearing before an administrative law judge, who rules based (again) on that very difficult standard.

Not only is the commission not making Florida less corrupt. It may be making it more corrupt. Because though county prosecutors can still bring criminal charges against a politician, why would he add to his towering caseload when that politician's defense attorney can tell a jury that the Florida Commission on Ethics dismissed a complaint against his client?

Herron says the wish list is "dead on arrival." If anything, the commission isn't asking for enough. To really be effective, it will also need a bigger staff.

But let's not get our hopes up. The proposal will land in the Senate Ethics and Elections Committee, chaired by Sen. John Thrasher of St. Augustine -- a veritable fox guarding the hen house. From the Times article:

Thrasher has been cited twice for ethics violations, once as a House member for illegally representing a client for a state agency and later for lobbying the Legislature less than two years after leaving office.

As a Clay County commissioner in 2006, Thrasher was cleared by the commission of an ethics allegation after he voted to award a contract to a garbage firm he had represented as a lobbyist.

As House speaker in 1999, Thrasher blocked legislation that would have beefed up the ethics commission's power, saying it could lead to "witch hunts."

A previous version of this post stated that the FCE cannot subpoena documents or take sworn testimony. In fact, the commission is able to perform those tasks, though it's ill-equipped to do so with only six investigators who tackle some 200 annual complaints.