Ethics Commissions: Obliging Government to Control Itself

Government makes rules for the people, but who makes the rules for the government? In the Federalist Papers, James Madison saw this issue as one of the greatest challenges in creating a republic: "You must first enable the government to control the governed; and in the next place, oblige it to control itself."

One of the many ways state governments are obliged to control themselves is through ethics commissions. How these commissions are structured, the jurisdiction they have, how they operate and what they cover varies greatly by state. Some commissions require equal party representation among their commissioners; others cover only one branch of government; still others function only as advisory bodies. The one commonality is that all play a key part in government oversight.

NCSL spoke with state ethics officials in New York, Oklahoma and Utah to better understand the roles their commissions serve and how they operate.

The People Who Run Commissions

When it comes to ethics, there are many nuances. Does being a member of a certain organization create a conflict of interest? Can a government worker spend money on a particular item for the office? Does an offhand comment meet the bar of official misconduct? These can be hard questions to answer. Ensuring that ethics commissioners have varying viewpoints and experiences to draw from when making decisions on these questions can be helpful.

To achieve a variety in perspectives, states often require party, race, gender, professional and geographic diversity on their commissions. "There is such a strong difference between the rural side of the state versus the more urban metro side," says Lee Anne Bruce Boone, the executive director of Oklahoma's commission. Oklahoma requires commissioners to be from different congressional districts and stipulates that no more than three can be members of the same political party. "I think having that balance of where people represent that more rural area versus the more urban area, it's just critical."

While these membership requirements are common, some states also require members to come from a variety of professional backgrounds. Utah's ethics commission requires three members to be former judges. Commissioner David Clark, who previously served as speaker of the Utah House, explained that he values the insight the former judges provide. "There was a nuance that the judges brought … to evaluate ethical misconduct, fairness, due process, evidentiary rules" and other matters that a commissioner from a non-legal background might be unfamiliar with, he says.

Lisa Reid, executive director of New York's commission, says that "a lot of the provisions, particularly in the ethics standards of conduct, say things like, 'You can't behave in a way that a reasonable person would believe that you're being unduly influenced.'" New York requires that its commission have a balance between citizen members and legislative members to help answer these questions. "Sometimes, having people (on the commission) that are totally outside of the legislative process is a great lens for us."

Commission Authority

Ethics commissions may cover more than just ethics. While the laws that commissions enforce can include conflict of interest reporting and nepotism restrictions, among other requirements, some commissions also oversee campaign finance compliance or lobbying regulation. The relationship between ethics and campaign finance might not be immediately clear, but much of campaign finance law aims to curb corruption. "I don't think you can separate one from the other," Bruce Boone says. "Especially in today's world … in how challenging election cycles can be and what is entering in those election cycles in terms of all the different influences."

In addition to what commissions cover, they vary in their powers. Some commissions have broad enforcement power, authorizing them to receive complaints about unlawful conduct, conduct investigations, hold hearings and impose fines or sanctions. Others issue advisory opinions explaining whether certain conduct complies with ethics laws, but do not issue binding opinions or sanctions. Commissions with advisory authority might recommend how a legislature proceeds-for example, in the case of a legislator who may have violated ethics laws-but do not adjudicate the case or issue a ruling.

Over the years, New York's commission has moved from investigatory to advisory, with a different commission now handling investigations. This change "allowed us to be a much stronger compliance agency because people come and ask us advice so much more frequently now that we're not doing investigations," Reid says.

Clark was speaker of the Utah House when the Legislature wrote the legislation that created the ethics commission in 2010. The Legislature put careful thought into keeping the commission's investigations private. Lawmakers hoped to avoid "try(ing) somebody in the front page of the paper," Clark says. "We want to make sure we have done all of our due diligence and given everybody the benefit of the doubt" before the commission refers the matter to the Legislature, at which point it becomes public.

State ethics commissions play unique and vital roles in government oversight. "Ethics … is like a muscle," Clark says. "If you want it strong, you have to use it, you have to flex it, practice it; because if you don't, it becomes weak."

To learn more, visit NCSL's State Ethics Commissions webpage.

Helen Brewer is a policy specialist and Adam Kuckuk is a policy associate in NCSL's Elections and Redistricting Program.

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