Two weeks ago the Coalition for Integrity released the S.W.A.M.P. Index, which ranks and scores all 50 U.S. states and the District of Columbia based on the laws governing ethics and transparency in the executive and legislative branches.
I am very encouraged by the response to the index and the questions we have already received.
Our hope is that voters demand commitments to address the shortcomings in their state’s legal framework as identified in our report. The results are not only essential to a voter’s understanding of their state’s ethics agencies, but also to current and future elected-officials so they understand how their state’s legal framework compares to those in other states and can work towards plugging loopholes.
How did we create the S.W.A.M.P. Index? We focused on ethics and transparency issues at the state level because state executive branch officials and legislators make key decisions that intimately impact people’s lives and spend trillions of dollars on roads, health education, and other programs. State laws are often the first line of defense against corruption and cover thousands of officials, employees, and legislators nationwide.
In this post I would like to highlight some of our research and findings on ethics agencies. Independent ethics agencies are fundamental to a robust legal framework for promoting and enforcing ethical behavior.
To compile our index, we asked eight different questions that can be classified in four categories — ethics agencies, gifts, campaign finance, and client disclosure.
The authority to investigate — on its own initiative or upon referral — is essential to enforcing ethics laws and deterring corrupt behavior. In order to carry out an effective investigation, the agency must be able to compel testimony and production of documents. One of our recommendations is that the proceedings of ethics agencies should be public to promote transparency and enhance the trust of the public in the operations of the ethics agency.
Enforcement powers of the ethics agency are important. No matter how strong the ethics rules are, effective enforcement is crucial to provide a meaningful incentive to public officials to refrain from improper conduct. There are a range of personnel actions that can provide effective deterrence, such as censure, reprimand, suspension with the most extreme being termination. In cases of elected officials, termination is an unlikely option and the only avenue is impeachment.
The ability to enjoin improper behavior or force compliance and to issue fines for noncompliance are also essential tools. These are critical baseline functions for ethics agencies. There are other factors, like adequacy of funding, that can hamper effectiveness that we have not investigated in the index.
We recognize the need for protections from political interference. It is apparent that the appointment process for members of the ethics agency is often controlled by state government officials, but protection from removal without cause enables individuals to remain independent once they are selected.
Jurisdiction. The scope of jurisdiction varies from state to state, though in a majority of states (29), all executive branch officials and employees and legislators are covered by an independent ethics agency.
Four states, Indiana, Iowa, Michigan, and South Dakota, have ethics agencies with jurisdiction over the executive branch officials and employees, but not legislators.
Three states (Delaware, Maryland, and Montana) have full jurisdiction over the executive branch, but limited jurisdiction over legislators. Delaware and Maryland have jurisdiction over the members of the General Assembly solely regarding financial disclosure, while in Montana the ethics agency cannot investigate if a complaint involves a “legislative act.”
Authority to Conduct Investigations, Hold Public Hearings, and Subpoena. Of the 46 states with independent ethics agencies that have jurisdiction over all or most executive branch officials and employees:
- 36 can initiate and conduct their own investigations
- 42 have subpoena power
- 27 can hold public hearings
Of the 42 states with independent ethics agencies that have jurisdiction over legislators for at least some rules:
- 33 states have the full authority to conduct investigations
- 24 are required to hold public hearings
- 38 states have the authority to issue subpoenas
Sanctions, Personnel Actions, Injunctions & Fines. Only three states (Louisiana, New Jersey and Rhode Island) received full credit on question two because their sanctioning power also extends to legislators and that power included all forms of sanction (other than termination for elected officials).
Another three states, Alaska, Indiana and Iowa, have robust sanctioning powers, but only with respect to the executive branch.
Six states that have independent ethics agencies but no ability to sanction or impose fines are Florida, Maine, Michigan, Utah, Vermont and Virginia.
Protections from Removal. Finally, we evaluated whether there was statutory language protecting members of the ethics agency from removal without cause, another key element to ensuring independence from political meddling. Our analysis determined:
Twenty-eight states statutorily protect the members of their ethics agencies with jurisdiction over both the executive and legislative branch from removal without cause.
Some states only have jurisdiction over a particular branch and received partial credit. For example, there is statutory language relating to removal of members of two of the three ethics agencies in Alaska and none protecting the members of the third agency.
Nine states with independent ethics agencies did not have statutory protections from removal without cause for their members. These states are Alabama, Colorado, Connecticut, Georgia, Indiana, Nevada, Oregon, Virginia and Wisconsin.
Shruti Shah is a Contributing Editor of the FCPA Blog and the President and CEO of the Coalition for Integrity (formerly Transparency International-USA), where she leads the Coalition’s development and promotion of approaches to combat corruption in business and government. She can be contacted here.
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