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1-year limit may scuttle state ethics cases
By JIM WALLS
Fulton County Commissioner Robb Pitts, thanks to a Superior Court judge, is off the hook for allegedly accepting $45,000 in illegal campaign contributions nine years ago.
That’s good news for Pitts, but potentially bad news for enforcers of Georgia’s ethics law, who could be cut off at the knees if the judge’s ruling is extended to other pending cases.
The State Ethics Commission will address that question early next year, potentially leading to dismissal of every open case older than one year against lobbyists, political committees and other non-candidates.
A bounced check by Pitts’ 2001 mayoral campaign kicked off events that led to the complaint against him. He couldn’t pay get-out-the-vote workers without that money, so several campaign officials lent him enough to cover the Election Day payroll. The amounts far exceeded the $2,000 statutory limit then in effect.
The donors freely admitted making the loans and even reported the problem to the ethics commission in 2002. In consent orders signed a year ago, former Southern Co. CEO A.W. “Bill” Dahlberg and two other donors acknowledged making improper contributions and promised not to do it again.
But Pitts, who blamed his campaign staff, never admitted knowingly accepting illegal donations. The complaint remained unresolved until October, when Fulton Superior Court Judge Kimberly Adams ruled a one-year statute of limitations applied and threw the case out.
Now attorney Randy Evans is asking the commission to stretch Adams’ order to cover allegations that $120,000 was illegally funneled to the gubernatorial campaign of Insurance Commissioner John Oxendine. If that argument prevails, expect lawyers in other ethics cases to follow suit.
Evans represents Rome-based State Mutual Insurance Co., which allegedly made the donations, but Oxendine could also benefit from his tactic. If the state can’t find that State Mutual gave the money illegally, it’ll be that much tougher to prove that Oxendine knowingly accepted an illegal donation.
Evans is taking advantage of a loophole created, apparently inadvertently, when the state Legislature revised the Ethics in Government Act in 2005.
Lawmakers, in tweaking the statute of limitations for candidates for elected office, omitted a reference to a time limit on other types of ethics cases. The mistake was not corrected until a new ethics law was passed this year, imposing a five-year limit.
In the interim, the ethics law set no time limit on complaints against non-candidates, so the ethics commission in 2008 set its own five-year limit.
No one really knows who messed up, Evans said. He and other campaign finance lawyers “recognized immediately when the mistake was made,” Evans said. As legislative staffers drafted the ethics amendment in 2005, “when they hit the delete button, they deleted more than they were supposed to. That happens.”
Now Evans argues that the five-year limit is trumped by a one-year limit elsewhere in state law.
State attorneys argue Adams got it wrong in her ruling in the Pitts case. The one-year statute cited by the judge covers civil lawsuits, not administrative enforcement procedures by government agencies and therefore shouldn’t even apply to Pitts.
The state could have tried to prove their point by appealing Adams’ ruling, but decided the Pitts case had simply run its course.
“It was time for it to take its rightful place in the dustbin,” said senior assistant attorney general Stefan Ritter.
Nevertheless, if a one-year statute of limitations applied to state enforcement actions, Ritter said, “the ability of the state to prosecute cases … would be devastated.”
Budget cuts have forced the commission to lay off roughly a third or more of its staff in recent years. Now, it has asked for $155,000 more this year just to keep its website from crashing and keep up with new duties.
Particularly galling, ethics staffers say, is State Mutual’s attempt to invoke a statute of limitations after resisting the commission’s subpoenas and then suing the commission.
It’s “mind-bottling,” as my kids would say.
“In legal parlance, we call that unclean hands,” said Stacey Kalberman, the commission’s executive secretary. “You can’t come to the court begging for relief with unclean hands.
“Basically they’ve done nothing except delay, delay, delay … In my humble opinion, one might call that unclean hands.”