Utahns for Ethical Government (UEG) published a response to some of the criticisms of their Ethics Initiative. Below is a portion of their response. Their entire response can be found at http://www.utahnsforethicalgovernment.org/ (as of Nov 2, 2009). I believe this to be a fair use of the material found on their website.

Their response is entitled "Setting the Record Straight", but I am disappointed in how it carefully selects or even alters the objections to the initiative, allowing them to respond to a simplified or red herring version of the objections. These problems are found in the first column, below.

I am also disappointed in their response that UEG calls "Reality." It provides all sorts of reassurrances that sound great, but they frequently misrepresent their own Initiative. It is telling that not once did UEG actually provide a link or other citation that would take the careful reader to the exact wording of the Initiative. It appears they do not want anyone comparing their version of Reality with the reality of what their Initiative actually says.

I'm not one to believe a used car salesman without examining the car. And I don't think Utah voters should be sold a clunker based on a glossy description. So I am continuing the debate in the third column, below. I tried to provide citations and links so everyone can see I'm not making this stuff up.

What UEG calls
"FICTION"

(in their words)

What UEG calls
"REALITY"

(In their words)

• Republicans, Democrats, Independents, and other voters have joined in a nonpartisan effort to address legislative ethics reform.
• Former Republican state legislators and Republican lawyers are leaders of this initiative.
• Governor Olene Walker is a supporter of the initiative, as are 10 other former Republican legislators and 9 former Democratic legislators

It is also true that Republicans, Democrats, Independents, and other voters have joined in a nonpartisan effort to oppose this Ethics Initiative because they have actually read it.

The danger of the Initiative is not necessarily a partisan one. This Initiative can be used to weaken the legislature on important issues that cross party lines. The authors and promoters of this Initiative have a history of being opposed to reform in education, taxation, finance and other key non-partisan issues.

• The legislature itself provides that in every other branch or level of government–executive, judicial, county, municipal–one person may file an ethics complaint against a public official or employee.
• Requiring 3 persons, rather than one, to file a complaint is a protection against “crazies.” If the complaint is found to be frivolous, or lacking factual or legal support, the Commission will dismiss it.
• Nothing bars the Commission from revealing the complainants’ identity to the accused legislator at the informal stage of proceedings. If the complaint is determined to have merit, the complainant must be identified to the legislator.

Requiring so many (3 people) is actually a serious flaw in this initiative.

It's not just "crazies" that operate alone; whistleblowers act alone too. A whistleblower's job is hard enough. Why require them to recruit others before they can act?

Often, only one person may both know of a violation and feel some inclination to report it. There is danger in requiring that person to recruit two others who either (1) don't have first hand knowledge of the matter, or (2) if they do know, they may try to persuade or pressure the first person into not reporting it! A major danger whistleblowers face is reprisal. Even friends and family who don't have first hand knowledge may counsel the person against whistleblowing.

By making it more difficult to report real misconduct, this requirement of three shows that either (1) this Ethics Initiative is not really about ethics but is just a power grab, or (2) this Ethics Initiative would be ineffective in its stated purpose when only one or two whistleblowers exist. Regardless of its intent, it will filter out good and bad complaints, but it will not filter out complaints from special interests who know how to play by the new rules.

These special interests could change the political landscape of Utah in a way that does not necessarily fall on party lines. It could target an issue that effects both major parties equally. Such a change would be particularly dangerous because it would be very difficult to detect.

A real ethics commission would want to hear the complaints of individuals so the commission can decide if it has merit. The "crazies" are easy enough to spot because they tend to file many complaints all originating from the same person.

• Any legislator who is subject to a complaint has informal rights of participation during the screening process and formal rights at the hearing stage. The informal rights are not limited in the initiative. and would be more extensive than those provided by the Legislature’s current process.

Column 2 misrepresents the wording of the Initiative. "Informal rights" are not mentioned anywhere. The actual bill says "The persons who filed the complaint may participate fully" and "The accused legislator may participate informally, but shall have no formal rights of participation." (Both quoted from this paragraph).

The denial of formal rights should not be understood to mean that there are "informal rights". These "informal rights" are not found in the initiative and were invented only to sell it. The reality is that the accused would not have the same rights as the accuser to call witnesses, etc. See the next row for more details.

• The Commission does not determine guilt or innocence. All it does is make a recommendation for action by the Legislature.
• The persons bringing the complaint have the initial burden of establishing all the elements of the misconduct. Only then does the burden shift to the legislator to rebut the allegations by a preponderance of the evidence. This is the same standard that already applies to corporate officers and directors, business partners, or trustees of trusts.

When there is a complaint, the commission-appointed executive director delivers a copy of the complaint to each member of the commission and "shall begin to investigate the averments in the complaint." At this stage, the executive director has the power to issue subpoenas for the production of documents and has power to compel the attendance and testimony of witnesses by deposition and otherwise. This is already litigation. "Within 60 days [of this], the executive director shall recommend to the commission either that the complaint be dismissed or that plenary review by the entire commission is appropriate." So the executive director has power to recommend dismissing the complaint, but at this point only the prosecution has the right to participate, the right to issue subpoenas, the right to call and hear witnesses. The accused has no such rights. All of this is spelled out in sections (3) and (4) that start here.

A closely related problem is that the executive director is appointed by the commission, the salary is set by the commission, and the job includes developing evidence one-sidedly to make a recommendation to the commission. The commission and executive director are working too closely for the commission to then be making independent, unbiased recommendations to the legislature. It is not appropriate for a panel acting as judges to be so intertwined with one side of a dispute.

• Commission recommendations are advisory to the Legislature, so there is no ruling for a court to review.
• Where legislator discipline is concerned, it would be a constitutional violation of the separation of powers doctrine to have the issue of ethical misconduct reviewed by the courts. (Furthermore, there is no judicial review of existing legislative ethics rulings).

In column one, they twist my objection into something they can answer.

Separation of powers is important, and checks and balances are important too.

The problem is that this Initiative tries to create a commission that is not accountable to anyone. Not the legislature see here and here (last sentence). Not the executive or judicial branches either as stated here (see also this one).

Why are these self-appointed guardians of ethics (UEG) teaching us to distrust our legislators and insisting that we trust their commissioners and Sponsors? Are they not human also? Again, it looks like a power grab to me.

So the commission's decision is not called a "ruling". So what! If their decision would have no meaning then this entire Initiative would have no purpose. Their decision could still have been arrived at in a fair or unfair, legal or illegal manner.

The purpose of judicial review is to make sure the commission is itself subject to the rule of law. An appeal would not read "I don't like the outcome" but rather "the commission committed such and such an error, or the commission violated such and such a law". No government body having power over U.S. citizens should be above judicial review.

Placing any government body above judicial review, above checks and balances, may be the beginning of tyranny.

• The legislator is permitted to select a private attorney because legislative staff attorneys may have a conflict of interest if simultaneously defending the legislator while charged to protect the integrity of the Legislature as an institution.
• Only “reasonable costs” are reimbursable. Such reimbursement is a protection for legislators, who otherwise might be afraid that defense costs would be prohibitive. Business organization statutes have similar protections for principals of a business.

"Regardless of cost" is only a tiny bit too strong. The cost has to be "reasonable," according to what is reasonable for litigation. This means that "reasonable costs" will be determined by the complexity of the case and not by anyone's vote or budget. It will end up taking textbooks from students.

The problem is that it is another substantial cost that must be borne by the taxpayer. The commission will have a minimum of $472,000 a year to stir up trouble (source). The costs arising from legislators defending themselves are going to add up, and legal fees are expensive. The state's Fiscal Impact Statement for this initiative called the amount "highly variable" and used $100,000 as a placeholder.

• Public officials accept the fact that their privacy is constrained when they agree to serve the public, and they openly acknowledge this in supporting disclosure requirements.
• There is no requirement for disclosure of the clients or customers of legislators’ employers. A legislator must disclose the significant sources from which the legislator derived benefit of more than $10,000 in the previous year.
• Disclosing one’s sources of significant revenue allows the public to assess whether a legislator has a conflict of interest in voting for or against certain pieces of legislation.

Here again, they've altered the objections to their Initiative so that they can answer an easier question.

We have a part-time legislature (this is a good thing). They are expected to earn their living elsewhere. They need to be able to continue unfettered or we will discourage some of the best people from running for office. Invading the privacy of people who are not running for the legislature will not promote ethics or good government.

It's not just the legislator's employer. It is the legislator him or herself. Some professions even prohibit this type of disclosure.

The Initiative only requires disclosures from the legislator and spouse, and certain "insiders of the legislator". Not so bad, right? Just look at how a web of definitions cause this to explode!

Its definition of "insiders" includes clients, control persons and relatives. It defines relatives to include everyone out to aunts, uncles, nieces, nephews, grandchildren, grandparents and even the first cousins of the legislator's spouse! It defines "control person" as, among other things, a "person who, under any set of circumstances, has power to direct or materially influence the affairs of another person."

Does that leave anyone out? That is so broad and so unclear that no amount of invasive inquiry on the part of a legislator preparing to file a disclosure will ever really settle the question. The will of the voters will always be subject to a recount not of votes but of disclosures, in case some small group has an axe to grind.

This Initiative will not create a legislature free of outside influences. Instead, it will create a legislature walking on eggshells to avoid complaints.And the danger is that the main source of those complaints will be a few people who understand the new rules of this complex Initiative and are motivated by a political agenda. Such people may want a legislator expelled and so they dig for a pretense, and find that a legislator's spouse's first cousin's business's obtained a contract to draw lines on a street, and the legislator didn't know about it to report it within the required number of days. It could become a witch hunt.

• Being a fiduciary means that the legislator has entered into a trust relationship with the public and must not use that trust for personal profit, must make full disclosure, and must be accountable for his or her performance in office.
• It is not considered a breach of fiduciary duty if any benefit to the legislator is on the same terms and conditions as benefit to the public at large.

• If legislators are appointed to business positions because they have skills and expertise suitable to the appointment, they may serve on a board of directors or as a corporate official, even if they are paid for their service.
• Only if the legislator is appointed to the business position because of status as a legislator and is compensated for the service would there be a violation of the code of conduct.

The problem is this: The ethics commission would have to use their special powers of examining the human heart to determine if the people who voted the legislator onto the board did so for only the officially approved, orthodox reasons. See here. If the voters/appointers did not have only the commission-approved reasons in their hearts, it is the legislator who is to be disciplined.

The opinions of the voters of the state of Utah, who elected the legislator to the legislature in the first place, do not play a role in determining whether the legislator can continue to serve.

Meanwhile, I find it amazing that the ethics commissioners can have all sorts of entanglements with boards of directors, corporations, etc. The Ethics Initiative does not provide for any oversight of its own commissioner or Sponsors. Indeed it prevents such oversight.

This so-called "ethics" initiative moves power away from the voters, and moves it to an unelected, unaccountable commission. Another step to tyranny.

• The 6-year time frame is not retroactive. It begins to run only after the initiative is enacted by the public.

The 6-year retroactive time frame is spelled out here. It lists one exception that is no help here (it actually makes it worse).

The U.S. Constitution prohibits ex post facto laws, but lately Congress and the courts have been chipping away at that too. See this article.

Any salesman can pitch empty assurances. We need to see where it says that the time frame begins to run only after the initiative is enacted by the public.

Where is the citation?

• Limits on campaign contributions have been upheld in several decisions of the U.S. Supreme Court.
• The Supreme Court is currently hearing a case that could result in a ruling that limitations on corporation contributions are unconstitutional. If this happens, Utah will, of course, honor the decision but all other initiative provisions would remain in force.

The idea of campaign contributions by individuals being limited is simply a matter of gagging an individual and limiting their power of free speech. How they spend their money is up to them, not the government.

Politics are so complicated, it is difficult for an individual to be heard. So they group together in PACs so the voices of like-minded individuals will have more weight. Individuals with money also donate generously to politicians they agree with to help them get elected.

Individuals should be allowed to "speak" with their money to the extent that they wish.

• Under Article VI, Section 1 of the Utah Constitution, legislative power is vested in the legislature and in “the people” through the initiative process.
• The initiative does not intrude upon any duty specifically assigned by the Utah Constitution to the Legislature.

The initiative process is an important check on the legislature.

However, it is also true that "too many cooks spoil the broth."

Recently, special interests have been abusing the initiative process, interfering with responsible legislation, and using deceptive packaging and confusing legalese to impose their hidden agendas on the citizens of Utah.

• The requirement for unanimity by the Republican and Democratic leaders in the House and Senate is intended to ensure that the 20 people in the pool are acceptable to both major political party leaders and viewed as independent-minded citizens.
• The fact that the leadership will not know which 5 members of the pool will ultimately be randomly selected as Commissioners greatly reduces the incentive for legislative leaders to pick partisan members of the pool.
• A bipartisan process is used in order to obtain a nonpartisan commission. In all states with Independent Commissions, both political parties are involved in the selection of Commission members.

Column 1 misstates the real objection to the problem. While it is true that a minority party is elevated to equal setting without voter action, the real problem is the requirement that the decision be unanimous as to all 20 people, and what happens if it is not unanimous by a date certain. The real problems are:

(1) The procedure makes failure a real possibility. If they don't agree unaniamously on all 20 people, who have to be willing themselves, the the entire process is transferred to a different group.

(2) If even one disagreement exists, guess who gets the power to name all 20 people in the pool? The Sponsors of this very "ethics" initiative. Isn't that convenient (sarcasm)?

(3) The Sponsors don't have to use any people that were agreed upon. They get to start over. I wonder if they already have them picked out.

(4) But it doesn't have to get that ugly. With this axe looming overhead, the legislator that happens to agree generally with the philosophy and general or special interests of the Sponsors has very little reason to be agreeable. That person has the most coveted of negotiating powers: the ability to walk away. Thus, it is this person that can demand concession after concession from the others, or they won't play. Thus the will of the Sponsors is accomplished even if unanimous agreement is reached.

• The sponsors have no incentive to be partisan because it would undermine the purpose of the initiative and destroy the reputation of the Commission.
• The fall-back provision encourages the legislative leadership to agree on a pool of 20 or otherwise risk public criticism.
• If a group of five sponsors is needed to create the pool of 20 candidates, the sponsors are bipartisan and must follow the same criteria as the legislative leadership. Legislators still select the 5 Commissioners at random from the pool

The statement in column 1 twists the real objections into something easier to answer.

It doesn't have to be partisan to be usurping authority. It doesn't have to be partisan to be tyranny.

As stated above, the will of the Sponsors will likely be imposed by subtle but powerful negotiating power. This could be visible or not. The subtle, implied threat of the fall-back provision tilts the playing field (to near vertical) even if its procedures are never actually performed.

With so much power to choose all 20 members of the pool, it hardly matters which ones are pulled out of a hat. (Not joking. The Initiative requires a hat.) As shown elsewhere, a magician's hat would be most legal and appropriate. The hat provides another opportunity for manipulation available just in case. In short, they summarize it as random but actually use words to do a limbo dance under the bar of randomness without actually requiring randomness. Read about the hat.

As for risking public criticism, the fall-back provision is dangerous anyway. According to this provision of the Initiative, the fall back provision takes effect even if one of the 20 candidates backs out at a critical moment.

• Limiting special interest contributions will require candidates for office to raise more of their campaign funds from their constituents and ordinary citizens.
• Wealthy individuals may have more money of their own to put into a campaign, but that money does not make the candidate beholden to big contributors.
• Getting to know and develop the confidence of one’s constituents can compensate for lack of personal wealth.

The entire initiative, considered as a whole, is hostile to grassroots politics. It's not just that it makes it harder to finance a campaign. It also lays a minefield of rules, regulations, procedures and requirements that would discourage any sensible person from running, unless perhaps they believe the Sponsors and commissioners are sympathetic to their political positions.

• Full and timely disclosure would be an important step, but disclosure alone is insufficient.
• Disclosure does not constrain the undue influence of big money in legislative decision making, nor prohibit unethical behavior.
• Utah’s campaign disclosure laws are neither timely nor enforced, and no penalty exists for partial reports that are amended after the election is over.

• Election to office does not assure ethical behavior. Polls show that a large majority of Utahns see legislative ethics as a problem.
• Legislative duties are not just to their constituents but to the public at large and to the integrity of the Legislature as an institution.
• Many ethical breaches are ignored because legislators don’t want to rock the boat, and current ethics rules make it extremely difficult to find inappropriate conduct unless there is a self-admission of such.

Utah has been independently rated as the #1 best managed state.

Lets keep what works.

Criticism is easy, but results speak louder than words.

• The annual appropriation provision, including an amount of no less than $472,000, prevents a hostile legislature from gutting the Commission by eliminating its funding. The fiscal note by the Governor’s Office of Planning and Budget actually estimated a somewhat higher initial cost ($536,000).
• The appropriation of monies in the initiative is similar to appropriations measures in many bills in each legislative session, all of which are subject to the “retrenchment doctrine,” which means that no legislature can bind a future legislature as to the actual amount of an appropriation.

Whether it's a little higher or lower from year to year misses the point. A half a million dollars annually is an awful lot of money to for doing nothing other than breathing down the necks of about a hundred individuals. Add to that the costs of their defense lawyers and that's a lot of money that could be put to better use elsewhere.

On top of the normal business, this particular initiative was poorly written and raises many constitutional questions which will have to be addressed one law suit at a time, further driving up the price..

The Initiative itself is deceptive and self-contratictory: On page 1, it prominently states "Monies Appropriated in the Bill: None" (emphasis in the original). But the sentence crossing over to the last page reads "this annual appropriation shall be no less than $472,000."

Apparently, even Governor's Office of Planning and Budget was deceived by the summary that said no funds are appropriated. Their fiscal impact statement (the "fiscal note") showed no sign of having noticed the $472,000. They came up their own itemized list of expenses that add up to $536,000, but the $472,000 is not listed among them so it is difficult to determine how they relate.

Fair Use rationale:

The above contains quotations of some of the web site found at http://www.utahnsforethicalgovernment.org/.  The use of this material is protected by the First Amendment to the U.S. Constitution and the fair use doctrine of the Copyright Act, 17 U.S.C. § 107  because I am quoting some of the text (only as much as necessary) for the purposes of criticism, comment, and education.

(1) The purpose and character of the use is noncommercial and nonprofit educational. I am not using their material for any financial gain. My website has no revenue model at all. It does not sell a product or service or advertising and it does not solicit or collect donations.

(2) The nature of the material quoted is factual and political.  Some of the quoted material is claimed to be what others (like me) have said and other parts of the quoted material is claimed to come from proposed legislation in the form of an Ethics Initiative.

(3) The amount quoted is a small portion of what is found at the http://www.utahnsforethicalgovernment.org/ website, specifically, only the exact items that are needed for commenting and criticism.  Because each item is so short, I know of no other practical and meaningful way to make reference to each item than to include it in its entirety. If I tried to summarize or abridge them I would corrupt their words, which is the key to the criticism in many cases. 

(4) The quotation is expected to have negligible effect on the potential market for or value of the quoted text. They do not appear to be selling copies as a way of making money. They have explicitly granted permission to everyone to make free copies by providing a "Download for print (PDF)" link.