ERB Transfers Prosecutorial Function to Office of Inspector General

At its December 21, 2016, board meeting, the City of New Orleans Ethics Review Board reconsidered the manner in which ethics complaints are investigated, prosecuted, and adjudicated. (For more on the issues associated with the past procedure, see this post.) Because the Board’s framework commingled the prosecutorial and adjudicative functions within the Ethics Review Board, the Board amended its rules to bifurcate those functions. The amendments are here (PDF downloads):

2016-12-21 DRAFT Ordinance for OIG Ethics Enforcement
2016-12-21 Revised Rules for Ethics Review Board

The ERB will ask the New Orleans City Council to adopt the draft ordinance at an upcoming Council meeting.

 

ERB to Consider Transfer of Prosecutorial Function to Office of Inspector General

At its February 29, 2016 Board meeting, the ERB announced a review of the substantive provisions of the City of New Orleans Ethics Code, the enforcement of the Code, and the Board’s rules, regulations, and administrative procedures. Section 1303 of the ERB’s rules mandate this review at least every five years to assure that the rules “promote integrity, public confidence, and participation in city government,” and to assess “whether they set forth clear and enforceable, common-sense standards of conduct.” See ERB Rules § 1303 (“Review of Board Rules”).

The Board’s review included reconsideration of the manner in which ethics complaints are investigated, prosecuted, and adjudicated. Under the current administrative framework, the Board investigates, prosecutes, and adjudicates complaints. See Rules for the Ethics Review Board §§ 601-815 (Feb. 1, 2011). For example, the Board, through its General Counsel, “may investigate any matter by gathering evidence.” Id. § 601. The Board then “shall decide whether . . . charges should be filed and the case noticed for public hearing.” Id. § 603. If the Board so decides, “[a] public hearing is initiated by order of the Board through the issuance of charges,” and a “time and place” is fixed for a public hearing. Id. § 802. At that hearing, the Board’s General Counsel or other trial counsel “for the board” acts as prosecutor. Id. § 805(A). The Board, without the assistance of counsel, then deliberates and decides whether the charges it ordered to be filed were meritorious. Id. § 805(F).

This procedural framework, however, may violate due process and fundamental fairness. In Allen v. La. State Bd. of Dentistry, 543 So. 2d 908, 915-16 (La. 1989), the Louisiana Supreme Court held that “the commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further. . . . The idea of the same person serving as judge and prosecutor is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness.” See also Ga. Gulf Corp. v. Bd. of Ethics for Pub. Employees, 694 So. 2d 173, 178 (La. 1997) (discussing lack of “appearance of fairness” associated with the “failure to clearly delineate and differentiate the functions of the prosecutor and adjudicator”); Haygood v. La. State Bd. of Dentistry, 101 So. 3d 90, 97-98 (La. Ct. App. 4th Cir. 2012) (finding that Board of Dentistry “improperly combined the prosecutorial and judicial functions by allowing its general counsel . . . to serve as the prosecutor, general counsel, panel member and adjudicator for the proceedings” in violation of respondent’s “due process right to a neutral adjudicator and a fair hearing”). As recently as June 9, 2016, the United States Supreme Court observed that “an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.” See Williams v. Pennsylvania, No. 15-5040 at 6 (Jun. 9, 2016); In re Murchison, 349 U.S. 133 (1955) (holding that judge’s dual position as accuser and decisionmaker in trial violated due process).

Because the current framework commingles the prosecutorial and adjudicative functions within the Ethics Review Board, the Board will consider amending its rules to bifurcate those functions. The proposed amendments are here (PDF downloads):

2016-11-09 Draft Ordinance for OIG Ethics Enforcement
2016-11-18 Draft ERB Rules for OIG Ethics Enforcement

If adopted, these revisions would place the investigative and prosecutorial function in the Office of the Inspector General (“OIG”). Even though the OIG does have some relationship and oversight by the Board, this relationship would not impede bifurcation. Indeed, the Louisiana Supreme Court has approved a similar system used by the Louisiana Attorney Disciplinary Board to comply with Allen. Under that system: “While the disciplinary board performs both an adjudicative and prosecutorial function, these functions are separated within the board. Supreme Court Rule XIX, § 2(A). The rule clearly delineates the functions of the disciplinary board and the disciplinary counsel, avoiding the commingling of functions in a single person which we found objectionable in Allen.” In re Laudumiey, 849 So. 2d 515, 523-24 (La. 2003). The court has likewise approved a similar system used by the Louisiana Judiciary Commission, which allocates the prosecutorial function to the Office of Special Counsel. See, e.g., In re McInnis, 769 So. 2d 1186, 1194 (La. 2000); In re Johnson, 683 So. 2d 1198, 1202 (La. 1996).

City Council Incorporates into City Code of Ethics Certain Provisions of the State Code of Ethics

On April 7, 2016, the City Council adopted an ordinance incorporating into the City of New Orleans Code of Ethics (by reference) certain provisions of the Louisiana Code of Governmental Ethics. The ordinance, which was published in the City of New Orleans Code of Ordinances in June 2016, provides as follows:

Sec. 2-745. – Incorporation of State Code of Ethics.

The City Code of Ethics adopts and incorporates by reference the following parts of the Louisiana Code of Governmental Ethics, Louisiana Revised Statutes Title 42, Chapter 15: Part I (General Provisions); Part II (Ethical Standards for Public Servants); and Part IIa (Unethical Election Practices).

The City of New Orleans Ethics Review Board (“ERB”) recommended the adoption of this ordinance at its meeting on December 16, 2015, and wrote to the Council with its recommendation on December 22, 2015. See 2015-12-22 Ciolino Letter to City Council re ERB Enforcement Authority. The ERB’s reasons for recommending this ordinance are set forth below.

Under the Louisiana Constitution, only the Louisiana Board of Ethics is empowered to enforce the Louisiana Code of Governmental Ethics. Article 10, section 21 of the state constitution provides as follows:

The legislature shall enact a code of ethics for all officials and employees of the state and its political subdivisions. The code shall be administered by one or more boards created by the legislature . . . .

See La. Const. art. 10, § 21 (1974). Interpreting this provision, the Louisiana Board of Ethics has previously advised the ERB that the ERB is not empowered to enforce the state ethics code.

The state constitution does not, however, prohibit local codes of conduct or local ethics ordinances. Moreover, state statutory law expressly permits such codes or ordinances. Louisiana Revised Statues section 33:9612.1 provides that:

The governing authority of a local governmental subdivision may adopt and enforce local codes of conduct or ethics ordinances. Any such code or ordinance may regulate the same or similar activity as regulated by the provisions of the Code of Governmental Ethics, R.S. 42:1101 et seq., subject to the provisions of this Section.

See La. Rev. Stat. § 33:9612.1(A).

Empowered by this statute—and unconstrained by the state constitution—the City of New Orleans has undertaken to “regulate the same or similar activity as regulated by the provisions of the [state] Code of Governmental Ethics.” Id. Indeed, the City’s Home Rule Charter mandates that “[t]he [city] Code of Ethics shall incorporate by reference and adopt the provisions of the Louisiana Code of Governmental Ethics and shall provide for such other, more stringent provisions as the Council may deem appropriate.” See Home Rule Charter of the City of N.O. art. IX § 9-402(2).

Although the Home Rule Charter requires the City Council to incorporate by reference” and to “adopt” the provisions of the state ethics code, it has not done so. The Code of Ordinances of the City of New Orleans merely references the state ethics code as an independent set of standards governing the conduct of city employees. The Code of Ordinances does not, however, expressly “incorporate” or “adopt” the substance of the state ethics code. See N.O. Code of Ord. § 2-741 (noting that the state code exists and observing that it “applies to all officials and employees of the city”); id. § 2-742 (requiring the city’s CAO to distribute the state ethics code to city officials); id. § 2-743 (requiring the city’s CAO to advise officials and employees how to obtain advisory opinions from the state ethics board); id. § 2-744 (noting that the city’s ethics code is intended only to supplement the state ethics code); id. § 2-774 (noting that other “laws, rules, and policies established by the federal and state government . . . prescribe standards of conduct for government and city employees”). Indeed, “Subdivision III. City Code of Ethics” of the Code of Ordinances makes no effort to “incorporate” or to “adopt” provisions of the state ethics code.

To comply with the city’s Home Rule Charter, the ERB recommended that the Council adopt an ordinance incorporating by reference and adopting the substantive provisions of the state ethics code. More particularly, the ERB requested that the Council amend “Subdivision III. City Code of Ethics” to include a section with this language:

Section 2-7XX. The City Code of Ethics adopts and incorporates by reference the following parts of the Louisiana Code of Governmental Ethics, Louisiana Revised Statutes Title 42, Chapter 15: Part I (General Provisions); Part II (Ethical Standards for Public Servants); and, Part IIa (Unethical Election Practices).

ERB Review of Ethics Standards and Procedures

At its February 29, 2016 Board meeting, the ERB announced a review of the substantive provisions of the City of New Orleans Ethics Code, the enforcement of the Code, and the Board’s rules, regulations, and administrative procedures. Section 1303 of the ERB’s rules mandate this review at least every five years to assure that the rules “promote integrity, public confidence, and participation in city government,” and to assess “whether they set forth clear and enforceable, common-sense standards of conduct.” See ERB Rules § 1303 (“Review of Board Rules”).

The Board will conduct a public hearing relating to this review process at its May 2016 or June 2016 meeting. Therefore, the Board has solicited comments from the Mayor’s Office, Council, and public. See 2016-03-10 Ciolino Letter to Mayor and City Council re ERB Review. Comments should be submitted on or before April 29, 2016.

ERB Requests Ordinance Adopting State Ethics Code

At its meeting on December 16, 2015, the City of New Orleans Ethics Review Board (“ERB”)  unanimously passed a resolution recommending that the Council adopt an ordinance incorporating by reference and adopting certain provisions of the Louisiana Code of Governmental Ethics. On December 22, the ERB wrote to the Council of the City of New Orleans to inform it about the resolution. See 2015-12-22 Ciolino Letter to City Council re ERB Enforcement Authority.

On April 7, 2016, the City Council adopted the resolution.

Under the Louisiana Constitution, only the Louisiana Board of Ethics is empowered to enforce the Louisiana Code of Governmental Ethics. Article 10, section 21 of the state constitution provides as follows:

The legislature shall enact a code of ethics for all officials and employees of the state and its political subdivisions. The code shall be administered by one or more boards created by the legislature . . . .

See La. Const. art. 10, § 21 (1974). Interpreting this provision, the Louisiana Board of Ethics has previously advised the ERB that the ERB is not empowered to enforce the state ethics code.

The state constitution does not, however, prohibit local codes of conduct or local ethics ordinances. Moreover, state statutory law expressly permits such codes or ordinances. Louisiana Revised Statues section 33:9612.1 provides that:

The governing authority of a local governmental subdivision may adopt and enforce local codes of conduct or ethics ordinances. Any such code or ordinance may regulate the same or similar activity as regulated by the provisions of the Code of Governmental Ethics, R.S. 42:1101 et seq., subject to the provisions of this Section.

See La. Rev. Stat. § 33:9612.1(A).

Empowered by this statute—and unconstrained by the state constitution—the City of New Orleans has undertaken to “regulate the same or similar activity as regulated by the provisions of the [state] Code of Governmental Ethics.” Id. Indeed, the City’s Home Rule Charter mandates that “[t]he [city] Code of Ethics shall incorporate by reference and adopt the provisions of the Louisiana Code of Governmental Ethics and shall provide for such other, more stringent provisions as the Council may deem appropriate.” See Home Rule Charter of the City of N.O. art. IX § 9-402(2).

Although the Home Rule Charter requires the City Council to incorporate by reference” and to “adopt” the provisions of the state ethics code, it has not done so. The Code of Ordinances of the City of New Orleans merely references the state ethics code as an independent set of standards governing the conduct of city employees. The Code of Ordinances does not, however, expressly “incorporate” or “adopt” the substance of the state ethics code. See N.O. Code of Ord. § 2-741 (noting that the state code exists and observing that it “applies to all officials and employees of the city”); id. § 2-742 (requiring the city’s CAO to distribute the state ethics code to city officials); id. § 2-743 (requiring the city’s CAO to advise officials and employees how to obtain advisory opinions from the state ethics board); id. § 2-744 (noting that the city’s ethics code is intended only to supplement the state ethics code); id. § 2-774 (noting that other “laws, rules, and policies established by the federal and state government . . . prescribe standards of conduct for government and city employees”). Indeed, “Subdivision III. City Code of Ethics” of the Code of Ordinances makes no effort to “incorporate” or to “adopt” provisions of the state ethics code.

To comply with the city’s Home Rule Charter, the ERB recommended that the Council adopt an ordinance incorporating by reference and adopting the substantive provisions of the state ethics code. More particularly, the ERB requested that the Council amend “Subdivision III. City Code of Ethics” to include a section with this language:

Section 2-7XX. The City Code of Ethics adopts and incorporates by reference the following parts of the Louisiana Code of Governmental Ethics, Louisiana Revised Statutes Title 42, Chapter 15: Part I (General Provisions); Part II (Ethical Standards for Public Servants); and, Part IIa (Unethical Election Practices).