The Coalition for Integrity released its Enforcement of Ethics Rules by State Agencies: Unpacking the S.W.A.M.P. Index report last Thursday. The report demonstrates tremendous differences in United States’ ethics enforcement and a lack of transparency in actions taken by state ethics agencies.
The interactive map, individualized state reports, overall report with recommendations, enforcement statistics, transparency rankings, scoring chart, and the methodology are available here.
We have 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.
The report analyzes how state ethics agencies exercise their enforcement and sanctioning powers — and how transparent that implementation is. It provides findings on the enforcement statistics of the ethics agencies of the 50 states and DC with jurisdiction over legislative and executive branch officials, as well as a comparative scorecard, which ranks the states and the independent state agencies on the transparency and availability of information regarding their enforcement actions.
Enforcement powers of the ethics agency are important because 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. The ability to enjoin improper behavior or force compliance and to issue fines for noncompliance are also essential tools.
Transparency of enforcement both enables public engagement and deters future wrongdoing. Public information is a prerequisite to a more informed electorate and, further, is crucial when reviewing an ethics agency’s policies and actions. Without comprehensive knowledge of an ethics agency’s enforcement actions, the public is unlikely to fully understand the purpose and effectiveness of their state ethics agency, and will be unable to advocate for needed reforms or increased budgetary expenditures on ethics enforcement.
Outside of the value of public information, transparent enforcement actions are more effective at deterring future instances of unethical behavior. Transparency increases the visibility of the ethics agency and helps spread awareness about the laws and regulations that public officials are subject to. In addition, public officials may be more likely to pay attention and abide by laws and regulations governing ethical behavior if the details of an ethics agency’s decisions are public and easily accessible.
The report builds on the 2018 S.W.A.M.P Index, which ranked states based on their legal framework related to the scope and independence of ethics agencies, powers of those agencies, acceptance and disclosure of gifts by public officials, transparency of funding independent campaign expenditures and client disclosure by legislators.
Our major findings are:
- Some state ethics agencies do not have any investigative power; others have only limited sanctioning powers. Even with power and authority, some state ethics agencies do not appear to actively pursue investigations and sanctions.
- Four states, Colorado, Florida, Minnesota and Rhode Island scored 100 on transparency of ethics enforcement (on a scale of 0-100).
- A majority of states (23) score at or below 50. We have only ranked and scored 43 states (including the District of Columbia). Five states do not have an operational ethics agency and ethics agencies in three states lack meaningful investigative or sanctioning power.
- The ethics agencies in two states, Mississippi and North Carolina, have absolutely no publicly available information regarding their enforcement actions and did not respond to requests for information.
Based on our review, we have several recommendations:
- A toothless ethics agency serves no purpose. Agencies need wide powers to investigate and sanction all government personnel.
- Proceedings of the ethics agency should be open to the public once it is determined that probable cause of violation exists. 15 ethics agencies publish no information on complaints resolved with a finding of an ethics violation.
- If an ethics agency determines that a violation has occurred, its findings and sanctions should be publicly available. 18 ethics agencies do not make their decisions and sanctions publicly available.
- To increase incentives for compliance, penalties should be meaningful. Fines of $100 or $200 do not provide a deterrent. Most states have the authority to impose significant fines but do not do so. A few states are limited by statute and, in these cases, the amount of the fines allowed should be increased via legislation to meaningful amounts.
- Every ethics agency should publish annual reports on their enforcement efforts, even if not required to do so by statute. Doing so demonstrates a commitment to effective enforcement and provides a deterrent to improper behavior. 31 of the 50 ethics agencies reviewed do not publish such reports.
Laurie Sherman is a Policy Advisor for the Coalition for Integrity working on a volunteer basis. She worked in the DC and NY offices of Paul Weiss for a number of years. She was the Anti-Corruption Advisor at the Mission to Serbia of the Organization for Security and Cooperation in Europe and held various positions in the State Department, Office of the U. S. Trade Representative, and Federal Communications Commission.
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.