What is the status of the omnibus bill complaint?

We're less than a week away from the beginning of the 2009 Legislative Session here in Utah and there is quite a buzz surrounding this session. Budget cuts have a lot to do with that and there is also much talk about ethics reform. We've been pretty loud about ethics reform here at the Accountability blog. In fact, before we kick off the next session on January 26, 2009, and all that will come with it, we ought to revisit a few topics that are still ongoing and some that have, perhaps, even been forgotten.

There is new information about the illegal "Omnibus Bill" officially known as SB 2 (second substitute). The plaintiffs have filed for a partial judgement concerning non-triable, unconstitutional issues of fact, specifically concerning counts three and four of the complaint on file. Count three and count four were not the main focus of the complaint last year, at least not for bloggers and news reporters. A lot of work has been done by the plaintiffs and their lawyers to show how unconstitutional the omnibus bill is, based on counts three and four. They are:

• Count Three: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to "Teacher Salary Supplement Program" SB 35 or lines 774 to 864 of SB2)
  
• Count Four: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to Section 11 of SB 2 - Requiring an "independent party" to evaluate public school instructional materials )

I'm happy to see that this is being pursued and after reading through the "Plaintiffs' Motion for Partial Summary Judgment on Article 10 Related Claims," that was served on January 5th. I was impressed with the amount of case law that was cited and how it applies in this situation. Last year I, and others, focused almost entirely on counts one and two. They state that SB 2 consisted of 14 other bills that, according to the Utah Constitution, a bill is required to have 1) a single subject and 2) a clear title. These were the most obvious parts of the complaint, but now that counts three and four have been elaborated on, they are equally valid and convincing, if not more so.

You'll need to read the document in it's entirety to fully understand where the plaintiffs are coming from, but I'll pull out some main points (the section headers, to be exact) to illustrate the newly elaborated concerns so that you can see what I'm talking about.

• SB 2 UNCONSTITUTIONALLY DELEGATES THE USBE'S POWERS AND DUTIES OF GENERAL CONTROL AND SUPERVISION OF PUBLIC EDUCATION PROGRAMS TO THE UDHRM AND PRIVATE PARTIES


• The Legislature May Not Transfer the Power Which Has Been Constitutionally Vested in a Constitutional Office to Other Agencies or to Private Parties.


• The USBE Is a Constitutional Office With Constitutionally-Vested Power to Control and Supervise Public Education in the State of Utah.


• The Teacher Salary Supplement Program and the Textbook Approval Program of SB 2 Are Impermissible Legislative Encroachments upon the Administrative Power of the USBE.
  
• SB 2 UNCONSTITUTIONALLY DELEGATES GOVERNMENT POWER TO PRIVATE PARTIES


• CONCLUSION


• Sections 19,20, and 11 of SB 2, the so-called Teacher Salary Supplement Program and Textbook Approval Program, should be declared unconstitutional. Both programs violate the non-delegation doctrine as that principle of constitutional law has been applied on numerous occasions by the Utah Supreme Court. They provide that another agency, the UDHRM, and private parties shall administer programs, the general control and supervision of which are constitutionally committed to the USBE under Article 10, Section 3. The Textbook Approval Program suffers from the additional constitutional defect of delegating government power to a private party.

Whatever happens with the complaint, I believe legislators in the upcoming session will avoid the mistakes they made last year. They will be much more careful about encroaching upon powers and logrolling. We're all watching!

New Ethics Bills Already Raising Questions....And Eyebrows

Over the past couple of days, the Salt Lake Tribune has followed up on the question of ethics in Utah's legislature. An article in today's paper, for example, highlights the misuse of lobbyist gifts, and provides some insight into the nearly $170,000 in lobbyist gifts legislators racked up last year. Insight, becomes a contradiction in terms with regard to gifts, however, since the vast majority of them have been obscured from public view and almost entirely undisclosed. That is all supposed to change and is something, among other ethics reforms, that many of us have been calling for.

On Monday, a hint of things to come (at least in terms of dialogue and the appearance of change) came in the form of an ethics package consisting of four bills. I've said before, I want to be encouraged...no, blown away, by real change in the legislature. I want these bills to be a real step towards transparency in government and a commitment to putting the public trust and service before monetary gain and political agendas.

Keep your eye on the process of finding consensus and, ultimately, acceptance of these bills, folks. It's bound to reveal a lot about some of our "public servants" and their motives for serving. I hope it raises a few questions for you like it does for me. For example, is Senate President, Michael Waddoups, serious when he says, of banning lobbyist gifts, that "we're inclined to think that disclosure is a better thing than prohibition, because prohibition tends to turn well-meaning acts into criminal acts." WHAT? Is this the same guy who wants liquor to be "prohibited" from even being viewed in Utah restaurants? Does anyone else see the incongruity, no, the borderline schizophrenia here? In addition, a few legislators are squirming in the face of bill "four" in the package which prohibits legislators from becoming lobbyists for a year after they leave office....with no mention of what that means for current legislators who are already paid lobbyists for various industries.

Let the shakedown begin.

Ethics Reform Revisited

I hope everyone had a little time off to spend with family and friends and that your holidays were well spent. With the New Year right around the corner and, perhaps more importantly, the 2009 Legislative session only 3 weeks away, it's just about time to wipe the sleep out of our eyes and pay attention to what lawmakers have in store for us next year. The presents and candy-induced comas will have their turn again sooner than we realize.

In preparation for the upcoming legislative session, I'd like to revisit a few points concerning ethics reform. In October I wrote about the efforts of Utahns for Public Schools to bring about positive change in regards to campaign finance. They published a Pledge for Legislative Ethics Reform and invited candidates and legislators to sign it as a vow of their active support and work for the passage of legislation that would allow for a more open, honest, ethical and transparent government. As of today, 24 Republicans, 47 Democrats and 1 Independent have signed the pledge. However, now that the election results have been tallied and the winners declared, there are only 31 out of 72 who are in a position to make good on their promise. They are:

Sheryl Allen, House District 19 (R)
Trisha Beck (NEW), House District 48 (D)
Laura Black (NEW), House District 45 (D)
Rebecca Chavez-Houck, House District 24 (D)
Tim Cosgrove, House District 44 (D)
Jim Dunnigan, House District 39 (R)
Becky Edwards (NEW), House District 20 (R)
Richard K. Ellis, (NEW), State Treasurer (R)
Julie Fisher, House District 17 (R)
Gage Froerer, House District 8 (R)
Kevin S. Garn, House District 16 (R)
Francis D. Gibson (NEW), House District 65 (R)
Richard Greenwood, House District 12 (R)
Greg Hughes, House District 51 (R)
Christine Johnson, House District 25 (D)
Pat Jones, Senate District 4 (D)*
Dan Liljenquist (NEW), Senate District 23 (R)
David Litvak, House District 26 (D)
Steve Mascaro, House District 47 (R)
Scott McCoy, Senate District 2 (D)
Ronda Rudd Menlove, House District 1 (R)
Karen Morgan (NEW), Senate District 8 (D)**
Marie H. Poulson (NEW), House District 46 (D)
Kraig Powell (NEW), House District 54 (R)
Luz Robles, (NEW), Senate District 1 (D)
Paul Ray, House District 13 (R)
Phil Riesen, House District 36 (D)
Jay Seegmiller (NEW), House District 49 (D)
Jennifer Seelig, House District 23 (D)
Carol Spackman Moss, House District 37 (D)
Christine F. Watkins (NEW), House District 69 (D)

Hopefully there are more legislators who support the pledge but for one reason or another have not signed it. I find it interesting that of all the signers only one current legislator (Pat Jones) who wasn't running for re-election bothered to sign the pledge. I don't believe Utahns for Public Schools meant for this to be a campaign tool, although that's what it ended up being. I would challenge any legislator not listed above to get a signed copy of the pledge in the mail ASAP. There was a time when your word was as good as gold, and perhaps it is for some of you, but how are we to know you care? I suppose we could email or call and ask each one of you individually, but why not let us all know by signing the pledge? If you're not in favor of ethics reform or if you disagree with certain points of the pledge, feel free to post a comment here and let us know what you would do differently. The people, your constituents, are interested in a change. The only people who can make that happen is you, the lawmakers. Now, more then ever, you can see that a change is needed. I personally hope that ethics reform goes beyond the points listed in the Utahns for Public Schools pledge (such as the formation of an independent ethics commission), but let's start somewhere! Please let us know that you hear us!

*Incumbent that did not run for re-election in 2008
**Retired seat in House (District 46), new to Senate

House Ethics Committee: Newly-expanded role, but any real change?

Last week, incoming House Speaker David Clark R-Santa Clara reported on a newly-expanded role for the House Ethics Committee. Good news, right? I would hope so, but I also have a nose for lip service, band-aids, and all things superficial. Maybe it's a good step towards more accountability and ethics reform, but it sounds more like an emphasis on training legislators on what is and is not ethically appropriate so that, in Representative Clark's words, "it reduces the [disciplinary] meetings we have to hold." To be fair, it sounds like legislators have also tasked staff attorneys with drafting 17 new ethics bills, along with a few bills addressing campaign finance and lobbyist regulation. This piques my interest because there is at least some change and attention addressing the essential topic of ethics. However, I still believe the real issues and the most direct and effective solutions are being side-stepped.

On this site, Sara and I have called for at least two fundamental changes in ethics reform, and they bear repeating:

1. Strong, clearly-written, and enforceable ethics legislation
2. An independent Ethics Commission

Ethics Legislation
As you may remember, Representative Greg Hughes was recently reviewed for ethics violations. While the bi-partisan House Ethics Committee cleared Hughes, all eight members signed a letter faulting his conduct as "unbecoming a member of the Utah House." "We request that Representative Hughes take steps to change his behavior," the panel wrote, "and to make appropriate apologies to those who may have been affected."

Part of the reason Hughes was cleared came down to dubiously less-than-clear legislation....language so vague as to blur culpability for any number of otherwise obvious misdeeds.

Independent Ethics Commission

Back in August, Sara wrote an excellent post on the topic of legislative ethics, outlining the process for filing and reviewing an ethics complaint and underscoring some of the current problems with the process....along with the obvious need for an independent state ethics commission. Utah is one of ten states who have not formed an independent Ethics Commission. In our case, we have Senate and House Ethics Committees, intended to be bi-partisan in nature with equal numbers of Republicans and Democrats. Utah also relies on the Attorney General's office to provide ethics oversight.

However, given the recent ethics debacles and their subsequent investigations (or relative lack thereof), it doesn't take much to realize that legislators policing legislators is not an ideal model.

Impress Us, Please!

Believe me, I want to be impressed. No, I want to be blown away by how seriously our legislators take ethics, but let's not be fooled by feel-good reports of changes to the House Ethics Committee if they don't translate into real change. Keep an eye on this committee, the bills being drafted....and whether or not the bills even make it out of the House Rules Committee.

Is Utah Senator Howard Stephenson looking for a new job?

A week ago the Salt Lake Tribune wrote an article entitled "Did Utah senator's advocacy go too far?" and quoted from emails that he had written to the Utah State Office of Education (USOE). The tone of the emails spoke for themselves; Senator Stephenson was obviously upset. "I've had it" and "This is past a joke" were only two of many phrases that ripped into Superintendent Harrington and employees of USOE. The article was likely prompted by the Utah State Board of Education's recent change in Board Rule that now prohibits unauthorized personnel (including legislators) to view Requests for Proposal (RFP). The new rule was adopted in response to Stephenson's continued pressure and "help" that he was offering USOE. Superintendent Patti Harrington felt the need to protect her staff from political pressure and the Board agreed.

The article, and two subsequent follow-up articles, didn't make Howard Stephenson very happy. He decided to use his weekly Red Meat Radio program to let people know that he feels justified in his actions. He has "worked behind the scenes to try to get improvement there" and he wanted to "expose the underbelly of the most dysfunctional office in the state." He obviously has some very strong feelings. Despite the cooperation of Superintendent Harrington as she has worked so hard to be as cooperative as she could (read the emails, they speak for themselves) and they've worked things out before with success. Instead of acting like a statesman, an elected official, a man becoming a legislator, he makes a coherent, planned, thought-out decision to do USOE further harm and inflict further pressure. Is this how business is done on the Hill? Didn't somebody just get reprimanded for this kind of behavior?

Howard Stephenson is a senior member of the Senate, as he pointed out on his radio program, and Chair of the Public Education Joint Appropriations Committee. He has a lot of ideas about technology and education. His opinions are so strong and he believes he is so powerful that he has no problem getting involved. But is his involvement going too far? Is he trying to do a job that isn't his to do?

Everyone knows an "expert" who thinks they know everything, shouting the answers across the room to questions that weren't asked of them. They overheard the question and they know the answer! Sometimes there isn't even a question being asked, but they're still there, more than willing to let you know their opinion. Bosses out there may relate even better to someone in their office who is always trying to take over, who speak on your behalf when it hasn't been authorized for them to do so. Learning to deal with eager-beavers is a part of life and eventually most of them learn how to control their outbursts. We tend to have little patience for their actions and our annoyance is usually read as a sign that their behavior is unwelcome and inappropriate. Sometimes you must put your foot down and declare, "If you want my job why don't you just apply for it?!"

This seems to be the case with Howard Stephenson. He is so eager to do the job that may or may not be getting done at the Utah State Office of Education that he's literally trying to do it for them. This may reflect on USOE, but it also reflects on Stephenson. Why is he so insistent that one particular business get a contract over another company? Some suggest that he has something to gain, but what if he doesn't. What if he just really believes in the company and believes that they'll do the best job? He gave them an hour infomercial on Saturday during his radio program, ending with their phone number and website address; he must really like them. That's fine, but it's not his job to select the company! That's the job of USOE. If he wants to make decisions in that arena then I suggest he apply within. He certainly has the passion, perhaps he'd do ok in such a position, but he's not in that position!

Stephenson also has some strong opinions on what style of math should be taught in public schools. Again, one might ask, "What's in it for him?" I haven't been able to come up with anything substantial as of yet, although I've looked. I can only surmise that there must be some ulterior motive, that's the conspiracy theorist in me, especially when it comes to Legislators. But even if there isn't, even if he just honestly believes that Singapore Math is the absolute best thing for our children, it's not his job to decide that!! There are people hired to make those decisions and their name is not Howard Stephenson.

There are other examples, that this blog may decide to investigate further, where Stephenson has overplayed his hand and exerted his power and influence. Stephenson referred to it as so-called meddling on his radio program. That may well have been a good action word to use, but his decision to go on the air and publicly criticize the office has elevated the verb to bullying. Sad that we all know what happens to bullies on the Hill. Virtually nothing!

Is his influence still too strong to resist? When we act annoyed at the know-it-alls around us, they usually aren't in a position to give us a cut in pay or even demand that we be fired. But Stephenson believes he is so powerful that he can do just that. It would appear as though he may actually have that kind of influence. Try calling either employee mentioned in the emails that Stephenson recommended be terminated. You won't find them in the jobs they were doing. One of them left USOE earlier than anyone expected and the other is now a secretary. I can't say for certain that both circumstances are not coincidental or unrelated, but somehow I think otherwise.

I hope that his colleagues will help him recognize the error of his ways and seek to advise him on how a Senator acts in what must be a difficult situation for him. No matter how justified he thinks he is, his actions and words are inappropriate, to say the least.

It's the Voters' Turn to Adjudge What's Ethical

I received the following letter written by attorneys David Irvine and Alan Smith this morning. I hope you'll read it, think about what this kind of behavior means for the state of our law-making process, and then vote accordingly. I'll let the letter speak for itself.

We are the attorneys (registered Republicans) who recently were not allowed to put on our clients’ case for ethics violations against Rep. Greg Hughes before the House Ethics Committee. The public may not be aware that, under the House rules of procedure governing ethics hearings, neither the legislators who petition nor their attorneys who have prepared the case for them are given any rights of participation in the ethics process once a complaint is filed. Hence, the committee members, who have no background, information, or knowledge respecting the charges presented, and with no training as investigators or prosecutors, must figure out what evidence might bear upon those charges, determine how to gather and hear that evidence, and adjudge a respondent’s guilt or innocence. In Hughes’s case, moreover, the committee was forced to do all of this on impossibly short notice, secretly, and within an extremely compressed time-line.

Notwithstanding these procedural biases which favor the accused legislator, all 8 members of the ethics committee, Republicans and Democrats, found that Hughes was guilty of “conduct unbecoming a legislator.” This rebuke was seconded with an admonition to apologize for his wrongdoing.

As to the ethics charges themselves, the committee gave Hughes a pass, not because it found him innocent, but because, in the Committee’s view, the legislature’s current ethics standards were too vague to be applied.

Putting the question of ethics aside, and looking at the evidence of crimes, former Republican legislator, Susan Lawrence, testified credibly and forcibly that Hughes had offered her a bribe. This testimony was corroborated by two other Republican legislators, Sheryl Allen and Paul Ray. Many if not all of the key witnesses who testified respecting the misconduct of Hughes, namely, Lawrence, Allen, Ray, Kim Burningham, and Margaret Bird, are Republicans. What is more, our Republican Attorney General, Mark Shurtleff, has announced that a criminal docket might be opened to investigate the Lawrence bribery charge, and many believe that Hughes may be a co-conspirator in the Mark Walker bribery scandal and a subject of the grand jury proceeding recently instigated by two county attorneys, one a Republican, the other a Democrat. In the face of so much inculpation by fellow party members, it is no wonder that the Republican chair of the ethics Committee, Todd Kiser, closed the hearing by stating that he had seen exhibited, through days of evidence, a very “unstatesmanlike” exercise of enormous power by Hughes.

In addition to these adverse judgments by his Republican peers, the Democratic half of the committee membership found that there was clear and convincing evidence that Hughes was guilty of one count of bribery and two counts of extortion. On another charge, that Hughes had misused taxpayer monies, exercised undue influence with a government agency, and subverted the legislatively prescribed neutrality of that agency in a state-wide election, the Committee voted to absolve Hughes only because his Republican colleague, Senator Curtis Bramble, took the fall for him. Bramble testified that, although Hughes was in charge of the political organization which had perpetrated these wrongs, it was not Hughes, but Bramble, who had acted directly in relation to the agency involved. In other words, even though Hughes knew of the wrongdoing and was in a position to stop if not prevent it, he escaped conviction since he merely stood by, did nothing, and watched while Senator Bramble engaged in malfeasance on Hughes’s behalf. So much for “moral leadership.” (Indeed, the Republican leadership at the state legislature, notwithstanding some recent “noise” that they have “got religion” on ethics, isn’t rushing to bring charges against Bramble -- even though, while “falling on his sword” for Hughes at the ethics hearing, Bramble virtually admitted to conduct that is criminal, and, since then, has bragged on a talk radio program that he would repeat that conduct if occasion arises).

Hughes now claims that he was vindicated by the committee’s judgment that he engaged in conduct unbecoming a legislator. This claim could be Hughes showing off his mastery of overstatement. But it more likely reveals, once again, that his moral compass has a hard time finding true north. He stubbornly refuses to take responsibility for his own misconduct, blaming those who merely report his wrongdoing. He is willfully blind to the constitutional requirement that those who run for office must remain accountable to the body politic. Hughes is so far from these qualities of responsibility and accountability that, upon hearing that the ethics complaint had been filed, he went to the state capitol to “get a piece of” and “punch out” one of the legislators who had filed it. The Highway Patrol was called to prevent Hughes from physically harming a fellow legislator.

Under the present ethics procedures at the state capitol, a legislator may not be found guilty of misconduct unless there is “clear and convincing” evidence that he has been unethical. For the Republicans on the committee, that would seem to require a videotape of Hughes handing over a bag of cash to someone. But this is not the traditional standard by which those who are given power to be exercised in trust for the benefit of others have been or ought to be judged. Under this time-tested, yes, conservative standard, all fiduciaries, including legislators, once accused, have the burden of persuasion to show that their conduct has been proper, that their actions are above reproach and beyond suspicion. The public, in other words, should not have to worry, wonder, or debate whether their representative has been above-board in his dealings – since this would never occur, after all, if that representative had avoided even the appearance of impropriety. We respectfully submit that Rep. Hughes, in his dealings, has not come within a country mile of meeting this standard. Indeed, the only thing “clear and convincing” about the Hughes case is that he was convicted, by a unanimous, bi-partisan vote, of conduct unbecoming a member of the people’s House. That finding is a vote of “no confidence,” and certainly is no “exoneration.” The public should echo this vote on Nov. 4th by replacing him.

Posted with permission by the authors.