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By Lyle Hillyard
Utah State Senator

As I read Bob Bernick’s report of the debate Tuesday morning at the Hinckley Institute, I realized that some reading it may mistakenly think that the reason I would be concerned about opening the records of the law firm that I helped found 42 years ago (and where I still work every day) is that by subpoenaing the company records they might discover some ethics violation. I hope that's not the case.

Let me take a moment to share more detail than the short debate format allowed. Because my legal work involves very sensitive matters for which a strict privilege is granted, I and my firm could not risk any thing that may compromise that protection.

Under Section 5 of the initiative, any three persons can complain to the commissions that I have committed an ethics violation. The executive director then must investigate and report his preliminary findings back to the commission. The section clearly provides that the three complainants can be involved in this initial investigation and at their direction, the executive director *shall* issue these subpoenas. They cannot go back more than 6 years so as worded, I (and others) read that they would be able to subpoena all the business records of the firm for 6 years. My attorney fees would be paid for by the State, there is no allowance for accountant or employees costs to respond to such a request. The section provides that these records are confidential but there is no penalty given if that provision is violated.

As the Section is now written, a competitor or disgruntled opponent in an emotional court case could file a complaint against me alleging, say, that that I am taking money under the table from business in the form of fees that are not related to actual legal work but to influence my vote. The complainants could then demand that the executive director subpoena all of the income records of the law firm for the past 6 years. They could also go to the press 31 days before the election (with early voting it could be just before people began to vote) and tell them that an ethics complaint has been filed against me for taking money under the table. After I had gone through this ordeal, when nothing is found, the commission would give an opinion that the allegations were without merit but, under the wording of the initiative, there is no way for that to be released.

In my opinion (and I am only one of 104), the complainant should file any allegation under oath based on first hand knowledge with all the supporting information attached. The Executive Director should then be able to contact the legislator and share the information with him or her and let them also respond under oath with any documentation to support the legislator’s position. Then the matter should be referred to the commission for their vote as to whether to continue. If they do, then both the complainant and the legislator should be able to use the power of subpoena subject to the unanimous approval of the commission. If there is no merit found to the allegation, the commission should have the power to order that the complainant pay for the costs incurred by the commission and the legislator. If the complainant violates the confidentiality provision, there should be a serious sanction such as the complaint is dismissed or even a criminal charge.

The issues raised by this 20+ page initiative are complex. Even though I was reassured by two initiative supporters that we could correct these problems, I maintain that we are already in process of correcting most of the problems that have been raised and will continue to do so. We have always had crimes for bribery or extortion which catches most of the acts complained of, if they really exist. The work of the legislature will be very difficult for the next few years trying to balance the budget and save the state sponsored programs that our citizens want. I hope we don’t have to use valuable time trying to correct the many flaws in the actual wording of this initiative.

3 Comments:

 Kim Frank said...

Does the following not show that those folks aren't exactly telling the truth...
"The commission shall meet, allocate its budget, marshall its resources, prioritize its work, and conduct its business as it deems appropriate, and its independence in this regard shall not be abridged, impaired, or threatened by the legislature, any committee of the legislature....."

Sounds like a power grab to me.

11/05/2009 7:33 PM  

 Anonymous said...

Kim, what part of "independent" do you not understand? Where exactly would the commission be grabbing power from?

You seem threatened by the initiative. Are you speaking as a citizen, as a wife of a legislator, or as a charter school lobbyist?

11/10/2009 1:17 PM  

 Kim Frank said...

Anon,

Even spouses of legislators, get to have opinions (we even get to vote :)
My husbands opinion even differs from mine...quite often.

In my humble opinion, this is a power grab, the opportunity to
"Lord" over our elected officials.

Independent, meaning, above the political process, working separately from...

The problem I have is that these folks are not elected and will answer to no one.
If they would be willing to go through an election, as legislators do, then they would at least have to answer to the citizens of Utah and could be replaced by and accountable to the voters.

How, in the end will the members of this commission be any more ethical than legislators?

The Daily Herald on Sunday, October 4, 2009 wrote...
The petition puts it this way: "It is the nature of power to corrupt ... [U]nchecked power and unlimited money create circumstances where a clear vision of the public interest becomes blurred by self-interest, favoritism, and a sense of entitlement."
It's true the Founding Fathers weren't naive about human nature. In the end, however, they trusted the people to be the ultimate judges of leadership performance.
"So who will police those who police the Legislature? How will the danger of political influence be kept away from commissioners? Why should anyone expect them to resist the pull of self-interest any more than legislators can?"
"Promoters of the ballot initiative say they are seeking "independent minded" people to be on the panel. Presumably these folks won't fall prey to the corrupting blandishments of money and power, for themselves, families or associates. Wouldn't that be nice?
Sure, but it's possible in only one situation: that ethics commissioners be devoid of any of the financial, political, social or family ties that are said to corrupt legislators. That means, however, that the ethics panelists would have to be orphans who grew up to become hermit monks living under vows of poverty. Of course, that's unreasonable."

Their collective opinion (no relation to legislators) accurately reflects mine.

They have further stated their concerns today....http://www.heraldextra.com/news/opinion/editorial/article_ec8e1343-8304-5686-b6c6-3539ed48ad7d.html

Fair and civil discussion should always be part of the process, I happen to agree, in this case with the opinion stated by the Daily Herald.

Question, why the nasty tone? Is it not possible to have a civil discussion?
Why hide behind "Anonymous", I didn't, I'm certainly not afraid of my opinions and would enjoy the opportunity to be educated further.

11/17/2009 12:42 PM  

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