A look back: Pressure, dysfunction at GA ethics commission
By JIM WALLS
Aug. 29, 2012 — Perhaps no state illustrates the political perils of ethics enforcement better than Georgia, where the ethics commission has been the nexus of more infighting, vitriol and litigation than a Univision novella.
Keeping track of all the resignations, firings, accusations and countercharges there has challenged even the most knowledgeable observers of Peach State politics. Three executive directors have resigned or been fired since 2006. Two other employees collected $405,000 in damages for allegedly wrongful termination. Lawmakers stripped the agency of 40 percent of its funding, its power to make new rules, even its name.
Today, as public pressure builds for ethics reform in Georgia, the agency faces a host of other challenges:
- Two former top-ranking officials allege the commission fired them for investigating suspected campaign abuses by Gov. Nathan Deal.
- Thousands of candidate disclosures swamp the agency’s online filing system, paralyzing it at peak periods for many users.
- Violators continue to avoid stiffer penalties because the commission has not devoted the resources to formally notifying them.
- Thin staffing keeps the staff from reviewing even 10 percent of the tens of thousands of filings it receives each year.
Much of this has come to pass, critics say, because the commission answers to the very politicians it’s supposed to regulate and investigate. Legislative leaders set its budget, control its powers and, along with the governor, decide who its five members will be.
In the view of many of the body’s critics, that system has failed. An independent commission, says former commission chief Teddy Lee, is essential.
“It’s got to be set up in a way that it can’t be manipulated,” says Lee, “by people who have no desire to be overseen or second-guessed.”
Tight funding has hobbled the commission as far back as anyone can recall.
The agency, created in 1974 to enforce Georgia’s new campaign finance law, gradually assumed lobbyist oversight and other responsibilities as well. Sometimes lawmakers ponied up more money to help carry out the new duties, but ethics advocates say it was rarely enough.
When Lee took over in 1990, he had just two employees, two typewriters and a photocopier so old that the manufacturer wouldn’t even offer a service contract.
The commission got a modest budget bump with passage of the 1992 Ethics in Government Act, Lee said. The law imposed Georgia’s first limits on campaign contributions in local races and forced lobbyists to register with the state and disclose their frequently lavish gifts to government officials.
Still, Lee said, he and an assistant had to juggle their time just to give ethics complaints a basic once-over. Budget-writers, he said, refused to add money to hire even one full-time investigator.
“If you ever wanted to raise eyebrows on a legislative committee, you asked for an investigator position,” Lee said. “That was a non-starter.”
Lee avoided possible reprisals for sensitive cases over the years even as he watched peers in other states “walk the plank” in similar circumstances. “Sometimes all they’ve got to do is get the drop on you and it’s over,” he said.
After the 2002 election, it appeared Lee’s luck might have run out. Gov.-elect Sonny Perdue, the first Republican to win the office since Reconstruction, asked Lee and other department heads to resign to make room for his own leadership team.
Lee refused, keeping his job after the commission’s chairman rebuffed Perdue in a strongly-worded letter. Georgians’ trust in the agency’s integrity, Lee said, depended on its independence from the political process.
But over the years, politics has cast an increasingly large shadow over the panel’s composition. The governor, initially allowed one appointment, won the power to name a second in 1975 and a three-member majority a decade later. In 2005, the Senate’s new Republican majority took a fourth appointment away from the lieutenant governor, a Democrat. (The speaker of the House selects the fifth member.)
Political pressures continued to bubble up, Lee said. When lawmakers’ personal financial disclosures were first posted online, the commission’s chairman urged him to take them down. “He said, ‘I’ve gotten two calls from two legislators from different parties, and they are really upset,’” Lee recalled. The commission, at its next meeting, agreed unanimously to keep the disclosures online.
By January 2006, though, Lee’s time had come. Two commissioners asked him to step down. They “wanted me to resign and say it was my idea, that I wanted to pursue other opportunities,” Lee said.
Lee refused, and the commission fired him a day later, as members said they needed a “fresh approach.” Steve Farrow, the commission chair at the time, declined to comment in a recent telephone interview.
“If you are doing your job with a state ethics commission, there are people who sometimes have the power to get you back,” Lee said recently. “They are people who want what they want and are used to always trying to get it.”
Commissioners denied widespread speculation that they were doing the bidding of Perdue, who’d recently paid $20,000 in fines and restitution for accepting excess campaign contributions. All three of the governor’s appointees voted to dump Lee, who had overseen the Perdue investigation.
Political considerations factored into Lee’s firing, though, even if the governor’s influence did not, a former commission member said recently.
After a decade and a half of ethics cases against state lawmakers, Lee had “no rapport at all” with them on budgetary matters, said the former commissioner, who asked not to be identified. “Certainly, we have to have some relationships with legislators.”
The friction, he acknowledged, may have been inevitable. “There’s always this dynamic when you have influential legislators who may or may not be happy with what you’re doing,” he said.
Despite supporters’ concern about Lee’s ouster, 2006 opened with the promise of being a banner year for ethics enforcement in Georgia.
A new law expanded lobbyist oversight and barred campaign fundraising while legislators were in session. Fines were increased and financial disclosure requirements tightened.
To help with enforcement, lawmakers beefed up the commission’s budget by 68 percent. Flush with funding for the first time, the agency upgraded its online presence to make all candidates’ and lobbyists’ disclosures accessible with a single mouse-click.
Rick Thompson, Lee’s replacement, also created an investigative unit — hiring six veteran police officers who were expecting to use arrest powers the commission had never before employed.
They would be the first full-time investigators at the Ethics Commission, as well as the last. Lawyers and auditors later investigated cases along with other duties, until budget cuts did away with virtually all of those positions as well.
Thompson said he hoped investigators with law enforcement backgrounds could quickly close a backlog of hundreds of pending complaints. Instead, he said, cases bogged down as he sent their reports back over and over for revision. “They didn’t have any strong writing skills,” Thompson said.
The constant rewrites exasperated the investigators, who complained they were being held to unrealistic standards. “We write like cops. We don’t write like attorneys,” former investigator Robert Bentivegna said.
Some of the investigators believed the campaign finance laws were riddled with ambiguities. The rewrites, they said, soft-pedaled their findings and deleted their conclusions.
“In criminal law it’s black and white. You either did it or you didn’t,” investigator Phillip West later testified. “And this was convoluted.”
Within a few months, Thompson fired his new director of investigations, Bill Thompson (no relation), saying he missed deadlines and failed to follow direction. Bill Thompson responded with a whistleblower lawsuit, charging that the real reason for his dismissal was his insistence on pursuing sensitive cases.
In a sworn deposition, Bill Thompson said his former boss initially told him to pursue criminal cases that would send a message to politicians statewide.
“I want to scare the bejesus out of those guys under the Gold Dome,” Bill Thompson said Rick Thompson told him.
But Rick Thompson’s resolve soon wavered, Bill Thompson said, amid worries about the commission’s funding. “Rick … painted almost every politician as a powerful politician that could affect his budget,” he said.
Others blamed the Thompsons’ conflict on personalities more than politics. “Bill … tends to rub on people the wrong way because he wants to do so much and to bring things to light,” Bentivegna said recently.
Several investigators, in depositions in the whistleblower suit, cited potential criminal cases that were never prosecuted.The first case, they said, was to have been against a former legislator suspected of spending tens of thousands of campaign dollars on personal expenses.
“Every time we started to do it, they would pull back on the bridle and say, ‘No, we don’t want to do that,’” West testified in 2008.
Previously, an outside investigator had told commissioners she found no evidence that Rick Thompson manipulated cases for political reasons. The state’s lawyers, while denying wrongdoing, settled the whistleblower complaint in June 2008 for $125,000.
The settlement marked the end of the investigative unit. By then, its remaining members had grown disheartened and already left for other law enforcement jobs.
Bentivegna, now a suburban Atlanta police detective, laments the unit’s demise.
“I’m just a cop at heart,” he said. “I believe if you did something wrong, you should pay the price for it.”
Rick Thompson, for his part, disputes any notion that he showed political favoritism at the commission.
“I was aggressive with Democrats and Republicans both,” he said. “No one in their right mind could say, ‘Rick pulled punches,’ because I went after everybody.”
In depositions, though, some investigators said they believed the commission did indeed pull punches by dismissing solid cases or issuing weak penalties. “It was a joke,” West said.
Rick Thompson noted that Georgia law gives commission members that prerogative.
That, Bill Thompson said in 2007, was the core of the problem. “When you have a commission of five political appointees,” he said, “you’re going to have political decisions.”
An end to rule-making
That wasn’t the end of conflict for the commission. In 2009, the panel ran into another roadblock over new rules that could curtail politicians’ use of private aircraft provided by lobbyists and campaign supporters.
“There were an awful lot of free planes flying around,” former Senate Majority Leader Eric Johnson, R-Savannah, said recently. “There had been some abuses.”
After Johnson asked for clarity, the commission enacted rules in December 2008 on how to calculate the value of those flights. Previously, candidates could estimate as little as they wanted; some didn’t report them at all. The new rules, fashioned after federal election guidelines, set a market value for such flights based on the type of plane and the distance traveled.
But some legislators were annoyed by the regulations, which became the last the commission would write. In April 2009, House leaders pushed through a bill stripping the agency of the power to make any more rules unless the Legislature specifically allowed them.
House leaders also tried to slash the commission’s budget by two-thirds, but never said why. One key Senate budget-writer, though, offered his own assessment of the proposed budget cut.
“Unfortunately, it happens a lot,” longtime Senate Appropriations Chairman Jack Hill, R-Reidsville, said recently. “They’re called ‘grudge cuts.’”
The Senate negotiated the budget reduction down to 30 percent, which still forced layoffs, a 60-percent cutback in office space and an end to subscriptions, maintenance agreements and new office supplies.
Rick Thompson announced his resignation a few months later, in August 2009. Now a consultant primarily to Republican candidates, he says that “no one told me that I had to go.” At the time, though, associates said he complained that political pressures and his frustration over weak ethics penalties led to his departure.
Wheeling and Dealing
Stacey Kalberman, a lawyer transitioning from a career in insurance regulation, took over as executive director in April 2010 but fared no better than her predecessors. She is now embroiled in a dispute over what she regards as her forced departure in 2011.
The falling out revolves around a case Kalberman inherited involving Gov. Deal’s actions while still a congressman. In March 2010, a complainant alleged that Deal’s gubernatorial campaign had misspent money in several ways, including payment for legal fees to defend him in a congressional ethics probe. A half-dozen related complaints followed as Deal won the 2010 Republican primary and general election for governor.
When Deal’s attorneys ignored her request that summer for campaign documents, Kalberman said, she notified the commission and prepared subpoenas. But once Deal became governor and the draft subpoenas were ready for review, she said, commission Chairman Patrick Millsaps refused to sign them.
Millsaps says he doesn’t recall briefings on the Deal probe and denies being asked to sign subpoenas. “That’s something I would remember,” he said.
Millsaps, a Republican whom Deal had just reappointed, “seemed uneasy” when she briefed him about the Deal case, Kalberman later told the state inspector general’s office. Deputy director Sherry Streicker said she too met resistance from Commissioner Kevin Abernethy who, after a similar briefing, “turned white and said he didn’t want any part of this.”
Abernethy, now the commission’s chairman, declined to comment. He has previously denied Streicker’s account.
Millsaps and Kalberman agree that he emailed her in May 2011 with his concern that the commission might run out of money before the year ended.
“Before we jump into ANY grand campaign, I think we need to look at this more closely,” he wrote.
When the two met to discuss the matter in June, the chairman told her commissioners planned to cut her pay by 30 percent and eliminate Streicker’s position altogether.
Kalberman walked out of the meeting. While she insists she did not quit, Millsaps emailed her the next day to accept her resignation.
A few days later, Deal’s executive counsel called Kalberman to suggest another state job might be available — a gesture Kalberman later described as an effort to “keep me quiet.” Deal’s lawyer said he simply wanted to help identify other opportunities.
Cutbacks in the commission’s spending — enacted a week later — eliminated Streicker’s slot and trimmed the director’s pay, potentially saving $120,000 a year in salaries. Much of the projected savings evaporated, though, with the hiring of a staff attorney to perform many of Streicker’s duties and a contract attorney to draft advisory opinions. Streicker, who was still looking for work, said she applied but couldn’t even get a job interview.
Kalberman and Streicker have both filed suit, contending the budget crisis was fabricated to force them out and disrupt the Deal investigation.
Millsaps flatly denies that allegation. The Georgia inspector general’s office, which reports to Deal, conducted a preliminary inquiry and dismissed a charge last November that the governor orchestrated the terminations.
Millsaps contends political pressure on the commission is rare because the targets of ethics complaints fear repercussions if they try to intercede.
“Once they put you on the Ethics Commission, nobody wants to talk to you,” he said. “It really is more isolating than anything else.”
An uncertain future
Today, the commission’s funding has somewhat stabilized. Lawmakers added $200,000 to its $1 million budget for more staff and for computer upgrades designed to allow the online filing system to handle more traffic.
But the years of internal turmoil — combined with an increasing workload and a staff shrunk from 31 employees in 2006 to just 11 — have taken their toll.
The commission found violations in 78 cases over the course of 2008 and 2009 but just 28 in the two-and-a-half years since then, based on analysis of orders posted on the commission’s website. In that period, the average fine fell from more than $2,900 to less than $700.
The agency remains unable to meet one of its statutory mandates — checking all campaign disclosures to be sure they’re filled out properly. Budget-writers this year funded a second auditor, but the commission plans instead to hire support staff to help manage the increased workload. With one auditor, the commission expects to review fewer than one in 10 filings.
Lawmakers continue to resist calls to restore the panel’s rule-making authority — with one exception. Just hours before lawmakers adjourned for 2012, a proposal to let the commission waive late fees was inserted into an unrelated bill on fishing licenses.
A second provision would have allowed the agency to seal closed cases if no significant violations had been proven. That measure sailed through the Senate with no discussion and nearly passed the House until detractors questioned its intent. House Ethics Chairman Joe Wilkinson, who defended his proposal as a way to protect candidates from “frivolous” complaints, says he’ll try again next year as part of a larger proposal to restore full rule-making authority.
Several months after the legislative flap, in July, the commission closed the investigation into Deal’s campaign money that had ignited so much turmoil — dismissing two complaints and negotiating settlements in three others. The governor paid $3,350 in fees and acknowledged minor “technical defects,” a classification that could allow sealing of those files if Wilkinson’s proposal passes in 2013.
Ethics reform seems likely to be a major issue when legislators reconvene in January.
Advocacy groups made a proposed $100 cap on lobbyists’ gifts to lawmakers a signature issue in this year’s legislative races. In non-binding ballot questions, voters from both major parties overwhelmingly backed a gift cap in July.
House Speaker David Ralston upped the ante recently by proposing a ban on all lobbyist gifts. He’s also suggested giving the ethics commission more money and autonomy “so that they are truly independent.” No details have been released on how that might be accomplished.
Advocates such as Sen. Josh McKoon, R-Columbus, working with activists ranging from Common Cause to local Tea Parties, are putting together their own ethics agenda. That may well include more transparency for political action committees and broader revolving-door restrictions on ex-state officials who want to become lobbyists.
Even more ambitiously, some talk about applying sunshine laws to the Legislature for the first time.
Whether activists’ ideas will be considered remains an open question. In 2010, House leaders introduced a bill to rename the commission, hike fines, ramp up lobbyist oversight and require thousands of local candidates to file disclosures directly to the commission. A bipartisan coalition of legislators had already signed on to their own ethics reform bill but couldn’t get a hearing, nor could they amend the leadership’s bill, effectively shutting them out of the discussion.
Johnson, the former Senate majority leader, believes the time has come for Georgia to have an independent, well-funded enforcer of campaign finance laws. The trick, he says, will be choosing the enforcers and insuring their impartiality.
“Do you pick them out of the phone book?” he asked. “Do judges do it? Judges have been political appointments.
“Somebody always has a political agenda. …. You still have to figure out how to take the politics out of politics.”