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Federal Court Enjoins Confidentiality Provision of Ethics Act. Philly Repercussions to Follow?
Submitted by Dan U-A on Tue, 06/30/2009 - 1:12pm.
The PA State Ethics Act, like the Philly one, has a confidentiality clause that makes it a violation of the Act to publicize when you make an ethics complaint. So, if I file an Ethics Act violation against Marc Stier and Sam Durso for boring us all to tears (wait, that isn't covered?), and then I tell all my friends on the twitters and youtube, I have violated the Ethics Act. In Philly, the confidentiality clause has ensnared many people, including the Director of the Board of Ethics.
And yesterday, after the Board fined an activist for violating the confidentiality clause, a Federal Judge granted an injunction against the enforcement of the Act's confidentiality provisions.
District Judge Christopher C. Conner granted the injunction to Middle Paxton Township activist Gene Stilp, who was charged with violating the act after he announced he filed a complaint against former House Majority Leader William DeWeese based upon a newspaper article that accused DeWeese of spending $290,000 in tax money on political polls.
Within a day, the State Ethics Commission ruled there was not enough evidence in Stilp's complaint to conduct an investigation and instead charged Stilp with violating the act by publicizing the filing of his complaint. On Oct. 16, Stilp entered into an agreement with the commission in which he admitted violating the act and agreed to pay a $500 fine. Stilp then filed suit in federal court to enjoin the commission from enforcing that provision of the act, saying it was a violation of his right to free speech.
The Federal Judge's ruling doesn't have any power over our own Act. But, by basically the same logic, I think it is likely that we will see a challenge to the Philly Act if it isn't modified. And if this is any indicator, the challenge will succeed.
An Ethics Board's decisions should reflect deliberation
but just as in criminal charges there is a big difference between being merely accused and being convicted of a crime. In the case with Stilp, clearly he was more interested in leveraging bad press (as deserved as it may or may not be) on DeWeese then in the substantive charges but so what? We rightly have wide discretion to call our elected officials "no good bums" under the First Amendment.
I think the Federal Court is basically right. Yes it might lead to some more politically motivated instances of people bringing ethics complaints to cast their opponents in a negative light - but they do that already. In the case with Creamer, one of Seth William's opponents had indicated an unrealistically large (and by implication serious) campaign finance violation was in play to discredit Seth Williams and Creamer tripped up by saying "if it is in play its much smaller". Eventually over time, the public will learn to distinguish between opening an ethics investigation and a finding of an ethics violation and stop paying attention. If as they proverbially say "you can indict a ham sandwich" surely the bar is obviously significantly much lower than that for filing an ethics complaint against a political opponent. Over time, the public will digest that fact and give less weight to people publicizing undecided Ethics Board investigations. As it loses political traction, its appeal as a negative publicity tactic will also fade.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
Final 3rd Circuit Decision Would Be Binding on Philadelphia
A decision--preliminary or final--by a a judge in the Middle District of Pennsylvania, which does not include Philadelphia, would not be binding on the city of Philadelphia.
A Philadelphian could file a similar suit in the federal district court--the Eastern District-- of Philadelphia; a final decision by our federal courts would of course be binding unless it overruled by a higher court.
I think it is likely that whoever loses the final ruling before the Middle District court will chose to appeal to the 3rd Circuit. The 3rd Circuit covers Philadelphia, and a decision by the Third Circuit that it is unconstitutional to ban a complainant from talking about an ethics complaint would certainly be binding on the city of Philadelphia.
Still if Stilp gets his $500 back
then certainly Councilwoman Tasco should really consider giving the Caps Lock button a rest on Creamer.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
um, what?!
any chance you could put that into English for the rest of the readers here??
acm
"Never doubt that a small group of thoughtful committed citizens can change the world. Indeed, it is the only thing that ever has."
— Margaret Mead
Sure, a translation
Councilwoman Tasco has been sending around some ALL CAPS TIRADES to show just HOW INCENSED SHE IS that Shane Creamer tipped his hat to a reporter about how much Seth Williams might be fined for some messy campaign finances. Essentially the reporter had been told by an opponent that the finance violation was very serious with a significantly larger fine to try to generate bad press about Williams as a candidate. The reporter asked Creamer if the exagerated fine number was accurate and Creamer at first said (as he should under the confidentiality rule that was just overturned) "No Comment". Then fearing his "No Comment" would be misconstrued he called back and said "If a fine is in play, it would be much smaller than that number".
For violating the confidentiality rule, Creamer was himself fined (like Stilp above) $500.
Meanwhile Councilwoman Tasco has been calling for Creamer to be fired for his error on the side of untimely transparency which has rightly been widely percieved as Council a ploy to disempower an Ethics Board they have been chafing at because it gets into their business.
Here's that thread with Tasco's comments about how "OFFENDED" she is for Creamer doing what essentially Stilp just won the right to do in court.
-Sean
MrLuigi, my cat, actually only types half as badly as I do.
The law clearly violates the 1st Amendment
It doesn't make sense that someone can file an ethics complaint and be prohibited from telling anyone about it. Neither can it be constitutional. Citizens have a 1st Amendment right to voice their opinions about public officials and to publicly call for investigations. It's not even a close case.
Here is a relevant instance:
http://www.casinofreephila.org/node/1066
Favorite title of a journal article. Ever.
RE: actionable boredom.