Ethics – Why Bother Indeed?

The editorial in the Lexington Herald-Leader asks the ultimate rhetorical question:

One question begs to be asked of Kentucky’s Legislative Ethics Commission: Why bother?

If an artful arrangement with Madison County is all it takes for Senate Minority Leader Ed Worley to get around a law that bars legislators from selling or leasing property to a state agency, why bother having ethics laws or, indeed, an ethics commission?

…
“The law provides no penalty for the appearance of impropriety,” the commission order said, “but if it did, the respondent could well be penalized on the facts before us.”
But then, the commission’s response always seems to be “Tut-tut” when investigating potential conflicts of interest by lawmakers. It has not upheld any such allegations in a dozen years. Based on the commission’s failure to gig Worley in a case that cried out “conflict of interest,” those past outcomes are hardly surprising.
They also beg the question: Why bother?

In reality, it’s a trick question. There is no reason to bother. The answer is found in the question. The Herald-Leader notes that the commission has not upheld any such allegations in a dozen years. And that timeframe of a dozen years provides the answer.

In fairness, Worley is just the latest in an fantastically long unbroken string of legislators reaching back over the past dozen years to be told that no matter what has occurred or been proposed, they have not violated any rules of the ethics commission. This summer, for example, it was dental hygienist and Republican state senator Julie Denton who was hired by a Florida company that sought for Medicaid through the spectacularly top-heavy health care plan known as Passport to give it a $20 million contract. Denton was hired by that company at the exact same time it got the contract for $20 million, to represent the company at state hearings where people appeal denial of services.

As the Broward Palm Beach New Times noted in July, “it’s one humdinger of a coincidence that Denton began her work with MCNA earlier this month, not long after MCNA won its contract.”

Leaving aside the potential issue of Denton’s unauthorized practice of law (by representing a corporation in a formal administrative hearing), in discussing the underlying conflict issue, the Courier-Journal’s editorial asked—isn’t it quite clear that she has no business simultaneously working for MCNA and running the committee that assesses Medicaid performance, including the quality of Passport services? If that isn’t a conflict, then Donald isn’t a Duck.

Back to that reference to no violations being found in the past dozen years: In 1991 and 1992, Operation BOPTROT occurred. It was an investigation by the FBI into corruption among the Kentucky General Assembly which led to the conviction of more than a dozen legislators between 1992 and 1995. The investigation also led to reform legislation being passed in 1993. That scandal-inspired legislation established the Legislative Ethics Commission.

Which was fine, until the Commission actually began prosecuting legislators for ethical violations. Fast forward to 1996. The legislature decided enough time had passed, and radically reduced the authority of the Legislative Ethics Commission. Five of the original Legislative Ethics Commission Members and the Executive Director resigned in protest. Those leaving in 1997 included retired Fayette Circuit Judge George Barker, and the Executive Director of the Commmission, Earl Mackey, who stated in his resignation letter that he had “great energy for true ethics reform but little interest or energy for dismantling” the ethics code, calling the 1996 amendments a swift ‘’counterattack from defenders of the old political culture.’’

In 1997, the new Commission chairman was extremely blunt about whether ethics would be prosecuted. Chairman Charles Lester expected to see education, not prosecution. Lester told a seminar of legislators that he did not see the commission having a primary prosecutorial function, althought that could happen in a few cases.

Lester was right about the commission not prosecuting. Ever. That year, in 1997, Kentucky Court of Appeals Chief Judge Anthony Wilhoit was named to replace Mackey as the Executive Director of the Commission. The next year found Wilhoit meeting with civic groups to try to restore confidence in the Legislative Ethics Commission, but the damage was permanent and powerful. For the past 12 years, there have been no prosecution by the Legislative Ethics Commission.

Examination or criticism of any individual legislator has accomplished nothing. The only possible focus is on the larger picture: because of the lack of authority given the overseeing institution of the Legislative Ethics Commission, ethical controversies have continued nonstop for the past 12 years. Realizing how the Legislative Ethics Commission was created and then effectively destroyed in the space of a few short years in the 1990s, the question has no answer:

Why bother indeed?

Until another BOPTROT occurs, it is extremely unlikely any modifying legislation will be considered.

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