/ Local News

05/15/2008

By KEVIN McGILL  / Associated Press

The state Ethics Board does not have the investigative tools it will need when a new, higher standard of proof in government ethics cases takes effect in August, the administrator of the board said Thursday.

In a little-noticed move during Gov. Bobby Jindal's first special legislative session in February, lawmakers changed the standard of proof for ethics violations from "reliable and substantial" evidence to the more difficult "clear and convincing" standard that is closer to that used in criminal cases.

Richard Sherburne, the Ethics Board administrator and general counsel, told a forum of the League of Women Voters in Baton Rouge that the tougher standard is "neither good nor bad." However, during the forum, and in a copy of a recent letter to lawmakers, he also noted that his four investigators are not trained in gathering evidence that reaches the higher standard, that they don't have access to equipment for such advanced investigations, such as phone recording devices, or the power to issue investigatory subpoenas available to other types of investigators, such as in attorney disciplinary or criminal cases.

"If you're going to ask me to do open heart operations, don't give me a butter knife," Sherburne told the League forum.

The forum on ethics came two weeks after the nonpartisan Public Affairs Research Council said the change, adopted as the Legislature passed broad expansions of the ethics code at the behest of Jindal, could make enforcing the ethics code more difficult. Jindal has touted the revamped ethics code as the first major accomplishment of his new administration.

PAR president Jim Brandt also took part in the forum, along with state Sen. Lydia Jackson, a member of the Senate and Governmental Affairs Committee, and Mark Ballard, Capitol Bureau Chief for The (Baton Rouge) Advocate and a columnist who first noted the possible complications posed by the language change.

The new ethics legislation included a host of new lobbying restrictions, income reporting requirements for public officials and bans on officials' contracts with government.

Among the most controversial matters was a law that moved the decision of whether a violation has occurred from the state ethics board to administrative law judges, selected by an appointee of the governor. The increased burden of proof was added to that bill in the Senate with little discussion on the last day of the special session, PAR said.

In a March 3 letter, Ethics Board members asked Jindal to veto that bill, citing the "clear and convincing" language as one of their concerns. Jindal signed the bill.

At an April 30 news conference, Jindal said anyone concerned about the change should make their case to the Legislature. And there is a move afoot in the current legislative session to alter the standard of proof adopted in the special session.

The House on Monday sent the Senate a bill that would, among other things, change the "clear and convincing" standard to "any reliable evidence."