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Shapleigh, Marquez on ethics commission: Do it

From the NPT Inbox:

Márquez And Shapleigh Urge County to Implement Ethics Bill Hard Fought County Legislation Ready for Local Action

EL PASO, TX- State Representative Marisa Márquez (D-El Paso) and State Senator Eliot Shapleigh (D-El Paso) held a joint press conference today urging citizens, governmental agencies and especially the El Paso County Commissioners Court to act immediately for effective reforms that will combat public corruption. Next week, El Paso County Commissioner’s Court will work to implement the El Paso County ethics bill, which becomes effective on September 1, 2009, but requires further action from the county to become effective in El Paso.

“We all have a stake in building a better El Paso and reforming the way government goes about its business. Capital and talent will not come to a community that carries the brand of corruption.” said Shapleigh. “Let’s start now by creating an effective ethics commission at the County of El Paso.”

The county ethics bill, SB 1368, which is the legislative companion to HB 2301, a contentious bill that State Representative Marisa Márquez (D-El Paso) authored and passed through the Texas House of Representatives, uses the power of state law to create a special authority for El Paso County to establish an independent ethics commission. The commission will have subpoena power and will adopt, publish, and enforce an ethics code governing county public servants. The commissioners court can either adopt an order or call a county-wide election to create the ethics commission.

“This bill paves the way for real progress in El Paso County, a way for us to become transparent, responsive, and accountable. El Pasoans deserve clean government and I am proud of the coordinated efforts of the Commissioners Court, Sen. Shapleigh and our offices in getting this important legislation passed. Now is the time for El Paso to lead the state once again and adopt the first ever county ethics commission in Texas,” said Marquez.

The ethics bill is unique in being the first bill to allow a county to create its own ethics commission. Under the new law, the county could create a ten member ethics commission that would review complaints and impose civil penalties of up to $4,000 for each violation. The County has scheduled a Special Session of the Commissioner’s Court to act on the Ethics Bill at 9am, September 1, 2009, at the Commissioners Court.

Written by newspapertreeelpaso

August 24, 2009 at 10:40 am

Posted in Uncategorized

5 Responses

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  1. University of Hawaii Law Review, 18 Hawaii L. Rev. 797, Confidentiality Breeds Contempt: A First Amendment Challenge to Confidential Ethics Commission…The current all-encompassing confidentiality requirements provisions maintained by the Ethics Commission require revision for several reasons. The provisions promote secrecy, violate the fundamental principles of the First Amendment, conflict with the basic foundation of the Ethics Commissions, and directly oppose the current procedures of the State…The Rules of Procedure punish “any individual” who divulges information concerning the allegation by fine, imprisonment, or both. n37… the Ethics Commission’s objective to preserve public confidence is frustrated. The current system of secrecy provides no accountability to the public. The public is unable to hold public officials and employees accountable for their ethical violations. Not only is the public left without any checks and balances on the public officials and employees, but also without any checks and balances on the Commission itself. Thus, public confidence is undermined as the confidentiality actually brings about contempt, mistrust and suspicion of the process…These provisions also violate the fundamental principles of the First Amendment by denying the public the right of access as well as the right of free discussion of governmental affairs. They prohibit the public from gaining knowledge of the existence or the contents of [*806] ethical violations of public officials and employees. They prohibit discussion of ethical violation of public officials and employees. These provisions endanger the objective of open communication of government affairs as guaranteed by the First Amendment…The issue on appeal was whether the statute, which permitted the criminal punishment of third persons who divulged information regarding confidential proceedings of the Judicial Inquiry and Review Commission, encroached on First Amendment guarantees. n48 The court determined that a principal basis of the First Amendment is “to protect the free discussion of governmental affairs,” and that the type of speech the Virginia statute attempted to punish “lies near the core of the First Amendment.” n49 The Supreme Court concluded that the speech the statute meant to restrict was exactly the type of speech the First Amendment was meant to protect. n50 It was established that in order for a state to restrict speech of governmental affairs, it must prove by actual facts that there exists “clear and present danger” n51 to the orderly administration of justice and that “the danger must not be remote or even probable; it must immediately imperil.”…The Supreme Court reversed the lower court’s decision and held that the Virginia statute was unconstitutional. n56 The Court held that the First Amendment prohibits criminal punishment of third persons for divulging information regarding confidential proceedings… The court held the statute unconstitutional as applied to Lind, the party that filed the complaint, and that it was unconstitutionally overbroad, both in its application to third parties and even after a determination of no probable cause has been made. n66 The court declared that enforcement of the provision needed to be permanently enjoined because “there [was] no reason to limit challenges to case-by-case as applied’ challenges when the statute on its face and therefore in all its applications falls short of constitutional demands.” n67…The Court of Appeals first determined that the statute was unconstitutional as applied to Lind. n69 The court reasoned that the speech the statute regulated, “speech about political processes and governmental investigations of wrongdoing by public officials, [fell] near to the core of the First Amendment.” n70 The court concluded that the speech was regulated on the basis of its content n71 and that section 11-216(d) regulated fully protected speech. n72 A regulation that restricts content-based speech is subject to a strict scrutiny standard of review and “will survive scrutiny only if it is narrowly drawn and is necessary to serve a compelling state interest.” n73 The State asserted several interests to support section 11-216(d); n74 however, the court held that the concerns were insufficient to justify restrictions on Lind’s speech. n75 The State argued that when Lind filed his complaint with the Commission he subjected himself to the confidentiality requirements of section 11-216(d) and, therefore, could not complain that the restrictions violated his First Amendment rights. n76 The Court responded that the restrictions existed before any interaction with Lind and the Commission and that the State could “not condition Lind’s ability to trigger an investigation on the theory that by filing a complaint he bargained away his First Amendment rights.” n77 The Court concluded that section 11-216(d) was unconstitutional when used to prevent an individual from stating that he had filed a complaint. n78 [*811]… Because the Supreme Court has recognized a First Amendment right of access to a criminal trial, that precedent and analysis should extend to recognize a right of access to proceedings of the Ethics Commission. Several state supreme courts have cited Globe and Richmond Newspapers to recognize a First Amendment right to access beyond the criminal trial… Public observation of the process benefits society as it increases the quality and protects the integrity of the entire system. n133 Public access to government procedures is vital to obtain public confidence. n134…In addition, open proceedings with public access promotes self-government. An essential element of self-government and access is to allow the public the ability to serve as a check on the system. n135 “Without publicity, all other checks are insufficient…”… The concern of the Ethics Commission of protecting potential complainants and witnesses is a legitimate issue. However, this concern is considerably diminished by the fact that there are already laws in place to provide protection to these individuals…The fear of unwarranted, frivolous attacks on public officials and employees in order to soil one’s reputation or to harass them is a genuine concern. It can be assumed that some frivolous complaints as a source of harassment will be made against individuals within the public eye because they are unable to satisfy everyone. n177 However, the Supreme Court has repeatedly found that injury to reputation is an insufficient reason for suppressing political speech. n178 The First [*830] Amendment ensures freedom of speech on public issues, such that it should be, “uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” n179 Criticism of the functioning of government does not lose its constitutional protection merely because it has the potential to cause harm to an individual’s reputation. n180 To advance government interests, public employees working on behalf of the people must be prepared to bear an increased level of criticism regarding improprieties. n181…The claim that confidentiality maintains confidence in the system is based on the assumption that the best way to keep the public’s confidence is to keep them uninformed. n189 On the contrary, there are indications that the confidentiality actually undermines public confidence. “Mistrust of government, we believe, grows more from enforced silence, with its potential for breeding resentment, suspicion and contempt,’ than from free wheeling discussion and debate, however premature.”‘ n190 In a system of secrecy, the public is unable to assess whether justice is or is not being served by the Commission’s work. The integrity of the Commission and the appearance of justice would be increased by providing access to the proceedings, as the public would be allowed the opportunity to participate in and to serve as a check upon the process. n191 The most desirable way to satisfy the appearance of justice is to allow the people the ability to observe it. n192 Respect for the law is increased as well as the public’s confidence, which could never occur in a system of secrecy.

    Carl Starr

    August 24, 2009 at 11:10 am

  2. Will the editors of NPT please keep court cases out of the comments section? Maybe it’s just me, but I don’t get it and it takes up too much space.


    August 24, 2009 at 11:42 pm

  3. Folks over at the Strelz Forum have complained as well, so you’re not alone in your frustration. I’ve asked him in the past if he can write a little narrative synopsis instead of cutting and pasting. But some folks might find it valuable. Carl does good research, and it is what it is. I find that the value outweighs the minor irritation of seeing all that text. It can’t be that hard to just scroll past it if you don’t want to read it.

    — Sito


    August 25, 2009 at 11:47 am

  4. Thanks Sito, I don’t post on Strelz anymore, actually I try to copy/paste just short clips usually. I view my law posts as having as much value as any bias annonomous post. Especially some of the filth etc posts over at eptimes…I usally keep a lot of opinions to my self..I mean everyone has one, I just post law for [any interested]we the people. Since the law can be a powerful tool for change and no one owns it and its free.

    Below is re Ethics Bill and follows up on some posts on NPT main page.

    Austin City Code § 10-6-11.
    9 Section 6.02 reads as follows:
    HN18(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
    (b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

    (c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.

    (d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

    (1) intentional; (2) knowing; (3) reckless; (4) criminal negligence.

    (e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.

    (f) An offense defined by municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state if the offense is punishable by a fine exceeding the amount authorized by Section 12.23.

    TEX. PEN. CODE ANN. § 6.02.
    HN19Section 12.23 limits the fine for a Class C misdemeanor to no more than $ 500. TEX. PEN. CODE § 12.23.

    Carl Starr

    August 25, 2009 at 3:43 pm

  5. re the Tx Speech and Debate Clause and the vague EP Ethics Bill [void for vagueness] failure to address affirmative defenses of the 1st Amendment and Tx Speech and Debate Clause…

    2008 R.I. Super. LEXIS 137
    October 29, 2008, Filed

    The central question of constitutional construction concerns the Ethics Commission’s contention that the Ethics Amendment conflicts with the Speech in Debate Clause. Specifically, the Commission contends that the provision of the Ethics Amendment granting the Commission the authority to investigate allegations of the Code of Ethics by elected and appointed officials conflicts with the Speech in Debate Clause’s grant of immunity to legislators…The Court concludes that past legislative acts performed by Irons are prohibited from inquiry by the Speech in Debate Clause. Consequently, the Ethics Commission is constitutionally precluded from questioning Irons about those acts. Accordingly, Irons’ motion to dismiss is granted.

    Attorney Wistow asserted that evidence of the vote itself cannot be introduced to prove bribery. He advised that the U.S. Attorney’s Manual states that the speech and debate clause provides that legislative acts shall not be questioned in any other place, in criminal and civil litigation, and provides absolute immunity. He clarified that it is not a defense, but a prohibition against charging his client in the first place. Attorney Wistow indicated that Counts 6 & 7 depend on showing his failure to submit a section 6 statement. He argued that the requirement of showing the vote is prohibited and seeks to compel self-incrimination with a separate punishment for failure to file the statement. ”

    Providence Journal-Bulletin (Rhode Island) July 10, 2009 Friday On June 29, the Supreme Court severely limited the power of the Ethics Commission to do its job. The majority of the court ruled that the speech in debate clause of the Rhode Island Constitution, as it was first written in 1842, trumps the ethics amendment creating the commission approved by the voters in 1986. After determining that the two sections of the constitution are in conflict with one another, the court sided with the older one. What is the speech in debate clause? It is a section of the constitution designed to protect legislators from harassment as they go about their core legislative functions of hearing bills in committee, debating bills, and ultimately voting on their fate. The clause grew out of a desire of English parliamentarians to protect themselves from intrusions by those who might be upset with their actions. By attempting to prosecute former Senate President Irons for his vote on pharmacy freedom of choice legislation, the court ruled the Ethics Commission was hindering the senator s right to go about his job without interference.

    Rhode Island Lawyers Weekly July 13, 2009 Rhode Island Supreme Court Case Summaries: July 13, 2009…charging him with committing ethical violations by voting on certain legislation affecting companies with which he had a business relationship, “The speech in debate clause, found in article 6, section 5, of the Rhode Island Constitution, provides: ‘For any speech in debate in either house, no member shall be questioned in any other place. ‘ The plain and unequivocal language of the clause ‘confers a privilege on legislators from inquiry into their legislative acts or into the motivation for actual performance of legislative acts that are clearly part of the legislative process. ‘ … It is on the basis of this constitutional provision that Senator Irons claims immunity from an enforcement action by the Ethics Commission. “Because we hold that the Ethics Amendment does not create an exception to the speech in debate clause and, because the alleged actions of Senator Irons were core legislative acts entitled to speech-in-debate immunity, we hold that the Ethics Commission may not question him with respect to those acts.

    Carl Starr

    August 27, 2009 at 12:46 pm

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