As we head into the final days of the session, we all have our one issue of focus, whether that be the legislative budget, the source of authority over the inland port, or the outcomes of a wide variety of other bills. However, two pieces of legislation are quickly moving through these last few days without much discussion at all -- perhaps the most concerning bills that were introduced this session.
Both S.B. 216 and S.J.R. 15 make seemingly small changes to the workings of our state’s three independent ethics commissions. Senator Bramble, the sponsor of both pieces of legislation, has introduced them in an honest effort to enable these commissions to function more efficiently and inhibit political abuse. These are worthy goals, to be sure, but to protect elected officials against political retribution, Sen. Bramble has instead proposed a one-word “fix” that will effectively shut off most ethical complaints.
Senator Bramble's proposed change would raise the "standard of knowledge" required to submit an ethics complaint to any of the three commissions in charge of investigating legislative, executive, and political ethics. Currently, a person needs "actual knowledge" to submit an ethics complaint. Bramble's legislation sets a higher bar: "personal knowledge." Now that everyone reading this is most likely scratching their heads and saying they don’t see the big deal, here are some definitions for you:
Senator Bramble has said that “actual knowledge” is hard to define, which is true. Some define it as “direct” knowledge, based on observation. others define it as knowledge based on “information as would lead a reasonable person to inquire further.” Whether it’s information you directly observed or information you gained from elsewhere, yet believe to be true, “actual knowledge” is knowledge that you “actually” have at the present moment.
This stands in stark contrast with “personal knowledge,” which does have a specific definition. It is “knowledge gained through firsthand observation or experience.” So, it’s a subset of “actual knowledge” -- the information you have directly observed.
When presented without context, this change of terms seems like a good idea. As Sen. Bramble explains, we do not want our independent commissions to be a forum for political attacks against elected leaders because anybody can submit complaints based on hearsay evidence. These commissions were established to independently review credible complaints of ethics violations, not grievances that just haven’t worked out in other employment or political forums.
However, this change is problematic because it closes off an entire class of ethical violations: what happens to the back-room deals, the bribes made in a Krispy Kreme, or other questionable acts that happen in the shadowy areas of government we all fear, but rarely see. All those who are party to these acts of corruption are not going to just report themselves -- the elected official is most likely not going to turn herself in, and the others involved in compromising her ethics are just as likely to keep it hidden. Yet if an outsider somehow discovers the unethical act, under a personal knowledge standard, a complaint would be barred because the conduct was not directly observed.
If our independent commissions are being abused, which is certainly plausible, then we agree that changes must be made. However, the potential effect this change would have on the public’s ability to hold their elected officials accountable must be taken into consideration. Although we raised this issue in committee while testifying on S.B. 216, it sailed through the Senate with unanimous approval without any discussion as to the bill’s probable outcome.
Before these two pieces of legislation pass without any objection by the very people who would be further shielded by this change, we should all stop and ask ourselves: does this sound like a good idea?
Chase Thomas is the policy and advocacy counsel with Alliance for a Better Utah and a graduate of the J. Reuben Clark Law School, Class of 2015.