Keeping House

by Representative Kraig Powell

October 26, 2009

Probably the biggest news in Utah legislative circles this year (other than the continuing cuts to the state budget) is the citizens’ ethics initiative that is now gathering signatures. If the initiative sponsors obtain approximately 95,000 signatures on their petition in 26 of Utah’s 29 senate districts by April, the initiative will be placed on the ballot for all Utah voters to approve or reject in November 2010.

Reaction to the initiative petition at the legislature has been uniformly critical. Legislators have given media interviews and distributed commentaries identifying flaws in the measure. No legislator has come out publicly in support of the proposal. The Legislature’s Joint Ethics Committee has quickly drafted its own bill creating an independent ethics panel in hopes of countering the initiative drive.

Many people have asked me for my position on the ethics initiative. As I have stated repeatedly, fostering strong legislative ethics is one of my highest priorities. I commend the sponsors of the ethics initiative for their concerns and efforts toward this goal. I think their proposal deserves a full and fair examination by the citizens of Utah.

In this column, I will try to explain as objectively as possible the major aspects of the lengthy initiative so that voters in my House district will be able to form their own opinions.

Then, I ask that you contact me within the next 30 days with your comments so that I can gauge the reaction of my constituents to the proposal. This information will allow me to stake out my position on the initiative effort.

The ethics initiative contains both substantive and procedural sections. The substantive portion enacts a new code of conduct for legislators.

One of the main substantive standards in the initiative is a ban on all gifts from lobbyists to legislators. This includes any goods, services, meals or entertainment. The only exceptions are gifts of “light refreshments of negligible value” and “awards of recognition” such as a token or plaque.

The initiative also places limits on campaign donations. Legislators are not allowed to accept more than $2,500 from an individual and $5,000 from a political action committee in a two-year period. Donations from corporations are prohibited entirely.

Legislators are prohibited from using campaign donations for personal expenses. When a legislator leaves office, he or she must donate all remaining campaign funds to an approved charity or to the state school fund.

Legislators are prohibited from giving their own campaign funds to another officeholder. This is intended to prohibit candidates for legislative leadership positions from giving money to other legislators prior to the leadership elections.

The initiative prohibits a legislator from working as a lobbyist while in office and for two years after leaving office.

Under the initiative, legislators are required to submit each year an exhaustive disclosure form listing all of their employers and other sources of income, including names of clients, along with any associations, boards, offices and positions with which they or their spouse are connected.

The legislator is also required to list any property owned by the legislator that may be subject to purchase by a public agency, and any relatives who are lobbyists or who are seeking contracts with any public agency.

Finally, the initiative prohibits a legislator from serving in a director or management position on any corporation, board, commission or agency, public or private, if the position was obtained primarily due to the legislator’s status as a lawmaker and the position provides profit or benefit to the legislator.

Procedurally, the initiative establishes an independent ethics commission. The five members of the commission are selected randomly by drawing five names out of a hat that contains 20 names selected jointly by Republican and Democratic legislative leadership.

If the leadership is unable to agree on the 20 names to be placed in the hat, the initiative’s sponsors are required to choose the 20 names. Once selected, commission members serve for five years.

An ethics case against a legislator is begun by three people filing a written complaint with the commission. The executive director of the commission investigates the complaint and makes a recommendation to the commission to dismiss the complaint or proceed to a formal hearing.

If the complaint is frivolous or there is no foundation for its allegations, the commission is required to dismiss the complaint. All complaints and investigations at this initial stage are to be kept private and confidential, but the initiative does not contain a penalty for leaking information.

If the commission votes to proceed on the allegations, a formal public complaint is prepared by the complainants and a public hearing is held. The complainants must first present evidence of a violation of the code of conduct. Then, the legislator has the burden to prove that he or she did not commit the alleged violation (giving rise to the criticism that the legislator is “guilty until proven innocent”).

During the entire process, the accused legislator is entitled to representation by an attorney of his or her choosing, whose fees are to be paid by the legislature. The complainants are also entitled to be represented by counsel, but their attorney fees are not paid for them.

At the conclusion of the public hearing, the commission issues a ruling determining whether a violation has occurred and making a recommendation to the House or Senate for punishment.

The House or Senate then votes whether to accept the conclusions and punishment recommended by the commission. (The Utah Constitution specifies that only the legislature may impose discipline on its members.)

If you have stayed with this lengthy column this far, I ask you to please email or phone me now and let me know your views on this significant initiative. My email address is kraigpowell [at] utah.gov and my phone number is 435-654-1550.