Mar 26, 2007
No plan to open ethics probes
Matthew Eisley - News & Observer

Legislative leaders aren't rushing to undo special secrecy they extended last year to investigations of lawmakers' misconduct. 
 
Some leaders have said they want to reconsider the secrecy, but others are resisting. And no lawmaker has filed a bill to make ethics investigations more public, openness advocates say. 
 
"It's still possible, but there's nothing so far," said Louisa Warren, director of the N.C. Coalition for Lobbying and Government Reform. "We believe that it's important for proceedings involving public officials to be open to the public." 
 
In passing a passel of ethics reforms last year, the General Assembly made the State Ethics Commission's complaint investigation process completely closed, after 30 years of open hearings. 
 
Formal charges against state agency officials, their written responses and their ethics hearings are now confidential by law. 
 
The same goes for the Legislative Ethics Committee, where lawmakers police themselves. 
As a result, government officials and elected lawmakers are subject to much less public scrutiny than are North Carolina's doctors, lawyers and elected judges. 
 
In the professionals' cases, preliminary government inquiries into ethics complaints are confidential, like a grand jury's secret review of a criminal allegation. That allows the agencies that supervise them to weed out false or frivolous complaints before they can generate unfair controversies. 
 
But once the agencies substantiate an accusation -- or, in legal terms, find "probable cause" for a violation -- they file public charges, much as grand juries issue public indictments. 
Those agencies also conduct public hearings and render public discipline or, for judges, publicly recommend punishment by the state Supreme Court. 
That's the approach the General Assembly first considered last year as part of major ethics and lobbying reforms it enacted. 
 
But during the reform debate, the state Senate replaced that mid-stage openness with late-stage secrecy. And the House went along. 
 
Since The News & Observer highlighted the discrepancy March 11, some legislative leaders have downplayed or denied it. 
 
"The legislature and the judiciary needed to be treated the same," Sen. Tony Rand, a Fayetteville Democrat, recently told The Fayetteville Observer, claiming that as justification for the change. "I was not willing to see the legislature treated differently." 
 
But the new law does treat lawmakers and judges differently. 
 
How procedures differ 
 
Complaints against judges go straight to the state Judicial Standards Commission without any review by the Ethics Commission. 
 
And the judges -- who, like legislators, are elected -- face public disclosure as soon as the commission files formal charges, before any hearing. Disclosure is equally public for lawyers and doctors charged with violations. 
 
Lawmakers, though, will get cover through the filing of secret charges and the conducting of a secret hearing, up until the Legislative Ethics Committee recommends punishment to the lawmaker's chamber. It also can issue a private admonishment. 
 
And state agency employees could be found guilty of misconduct on the job and punished for it without the Ethics Commission or the worker's agency ever revealing the misdeeds to the public. 
 
"If an executive branch agency disciplines an employee, you may never know it," said Ethics Commission Chairman Robert Farmer, who opposes the secrecy. "And if the Legislative Ethics Committee doesn't recommend a sanction to the House or the Senate, you'll never know about it." 
 
Yet Rand isn't alone in misstating what the law does. 
 
"It's a balance of maintaining confidence in the system, being as open as we can, and maintaining confidentiality -- particularly for charges that are unsupported or insubstantial," Rep. Rick Glazier, a Fayetteville Democrat and the top House member on the Legislative Ethics Committee, told The Charlotte Observer. 
 
But that ignores that the alternative the legislature rejected -- openness after the probable-cause determination -- also would have screened out charges that are unsupported or insubstantial. 
 
Farmer, a former judge and legislator, favors openness once complaints are substantiated and charges are filed, but before they're proved at trial -- the same way criminal courts operate for ordinary citizens. 
 
"It concerns me that it's this way," Farmer said. "I think it ought to be open to the public."