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An editorial board that seems to have read the actual text of the "ethics" initiative:

Daily Herald: IN OUR VIEW

A group pushing a ballot initiative it says would raise ethical standards in the state Legislature wants to create a special commission that would examine allegations of misbehavior.

Just about everybody, including many a lawmaker, feels that some sort of independent eye on the Legislature is a good idea. But Utahns should not be swayed to support this ballot measure just because it sounds good. Sound bites do not make sound public policy. It's the nitty-gritty plain language of the law that counts, and that's where the proposed initiative fails.

Voters need to understand the plain language of this initiative, because it is laden with problems.

For example, those pushing the ethics initiative frequently claim that the oversight commission it would create is strictly advisory, so Utahns need not fret overmuch about its powers. Looking at the plain language, however, which describes what would be on the ballot in November 2010, gives a more alarming picture.

The referendum, if passed, would make this state law:

"The commission is vested with power and jurisdiction ... to do all things, whether herein specifically designated or in addition thereto, which are necessary or convenient in order to accomplish" the broad purpose of ethics enforcement.

That's a blank check for the commission, with no check or balance. Who decides what's necessary or convenient? The proposed law makes the commission immune from any court ruling. So the conclusion must be that the panel itself would decide what was "necessary and convenient."

That's not merely wide latitude; it's a virtually unlimited mandate.

The genius of the American system is that it puts limits on government. Here, unfortunately, is a loophole that would seemingly let the ethics panel avoid limits. But this is just one instance of plain language at variance with sound bite.

Is the commission's job merely advisory, to lecture Capitol Hill on right or wrong? Not at all. Here's a key passage from the petition:

"Although the commission serves the legislature and is not an agency within the executive branch of state government, the commission nevertheless shall have the powers and shall adopt the procedures of the Utah Administrative Rulemaking Act."

Mmm. That doesn't sound so bad. It has to make rules, right? But now turn to the code, which says:

"An agency's written statement that is made as a rule in accordance with the requirements of this chapter is enforceable and has the effect of law."

That means the ethics commission will make laws -- or at least rules that have the effect of law, something like the Internal Revenue Code of the United States. The laws the commission would make are not necessarily trivial ones, either. The petition goes on to say that

"Any conduct which violates the code of conduct shall be deemed in every instance to be one or more of the following: (i) a felony; (ii) a breach of the peace; (iii) an action outside the ordinary course of legislative business; (iv) an action beyond the scope of a legislator's official duties."

Looking at all this, we see that the initiative would give the ethics panel real heft in the legal world. Advisory? Hardly. Of course, its advocates certainly hope the new setup would have an impact. But our judicial system, by contrast, has plenty of built-in protections for an accused person. Not so with the ethics initiative. It seems to envision a different process.

To its credit, the proposed law would explicitly apply the state open meetings and open records acts to the panel, so that proceeding would be conducted in the full light of day. Yet, except for openness,

"there shall be no judicial review or agency review of any commission action."

Is this the sort of Star Chamber that Utahns want? Be careful what you wish for. No judicial review of a governmental action? How could that happen? How could Americans think that courts should not step in to protect rights? Who is to prevent potential abuses by the ethics panel itself if not the courts?

In short, a reading of the plain language of the ethics petition strongly suggests that the commission would not be merely a nag and a scold, with no real powers. On the contrary, it will have significant legal powers, including a startling authority to intervene in court cases.

Certainly, there is merit in the idea of an independent body examining ethics questions. But like every other governmental entity, it must act within clear and definite limits. Sadly, the ethics commission as outlined in the current ballot initiative falls far short of that vital American ideal.

4 Comments:

 JBTalcott said...

The Senate Site would be well advised to note that the editorial boards of KSL, The Deseret News, The Salt Lake Tribune, and the Ogden Standard Examiner read the actual text of the Government Ethics Reform initiative as well and came to a completely different conclusion than the Provo Daily Herald.

The Herald's editorial true to form is replete with half truths, deliberate misinterpretations, slanted comments, and biased conclusions. This is just one more example of the "fear based" rhetoric coming from the ultra conservative core of the Republican party attacking the initiative while completely avoiding any mention of the core elements of the initiative contained on the Code of Conduct Section 36-27-301. There is a distinct possibility that the Provo Daily Herald editorial board will find themselves as out of step with the citizens of Utah on the subject of the ethics reform initiative as they were on the subject of School Vouchers. Hopefully the Senate Leadership can draw a parallel as well.

10/15/2009 3:46 PM  

 The Senate Site said...

Hey John - I don't think you'll find many who will disagree with the 'core elements' you mention. The devil is always in the details, however, and the details in this proposal are problematic.

I believe The People, acting as citizen legislators, have a responsibility to read beyond the executive summary.

(And I do think you're making some big assumptions about which editorial boards have actually read the full text of the initiative. Who knows, though. Maybe you're right.)

What's your story? I notice you are quick to comment and tenacious in your opinions on blog sites that mention this initiative.

10/15/2009 4:19 PM  

 Jesse Harris said...

John, you are adopting a very Bush era "you are with us or you are against us" attitude on this. You paint anyone who opposes this specific initiative as anti-ethics, a grotesquely false charge in the vast majority of cases. Whenever someone raises these concerns, you immediately divert to entirely unrelated portions of the initiative instead of making even a facile attempt to address them. It substantively weakens your position.

10/15/2009 6:35 PM  

 JBTalcott said...

Senate Site. Your inference that the editors of the Salt Lake Tribune, KSL, the Deseret News, and the Ogden Standard Examiner may have not read the entire document is insulting to those professionals to say the least. To hold the Daily Herald Editorial up as an intellectually honest discussion of the problems with details of the initiative is a poor choice in my opinion.

If the spokesman for the Senate Site would like to list the "core elements" in Section 36-27-301 with which he and his colleagues agree. Then we shall have a starting point for a discussion of Legislative Ethics instead of all of the peripheral issues that detract from the germane topic that is the basis for the initiative.

Jesse Harris, if you are truly not anti-ethics as you claim. I invite you as well to list those rules listed in the Code of Conduct that you believe our elected leaders should be required to follow, so that a discussion can follow on the core issues of the initiative, for a welcome change.

My contention has been that the nit picking about the Czars, Super Czars, lack of checks and balances, lack of oversight of the committee, etc. is nothing more than a smokescreen put up by those on the far right to dismiss the initiative without having to come out and tell the truth which is they just don't want to have to have the oversight of an independent committe and they certainly don't want to have to follow all of those ethics rules.

The test to see if I am right will be to see which ethics rules the legislature passes in the next session to "stave off" the initiative. It will be most interesting to see if they actually remodel the room or just put more dressing in the window to make it look like something inside the room has changed when in fact it has not.

10/15/2009 11:25 PM  

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