2008 Session Highlights
By: Alden Clement
The First Extraordinary Session of 2008 saw major additions and revisions to
state ethics laws. Although the Second Extraordinary Session of 2008 did not see
the introduction of any ethics legislation, given that session's limited call
and the previous special session devoted solely to ethics reform, the 2008
Regular Session saw more than its share of bills proposing significant revisions
to both current and soon-to-be-effective ethics laws.
2008 1st EXTRAORDINARY SESSION
House Bill 1 by Representative Tucker (Act 1) requires lawmakers,
statewide elected officials, local officials, certain state appointed officials,
and members of certain state boards and commissions to publicly disclose their
own personal financial information and that of their spouses on an annual basis,
in varying amounts of detail depending upon the office held. Candidates for
those offices must also file financial disclosure reports.
The most stringent requirements apply to the governor, statewide elected
officials, department secretaries, the executive secretary of the Public Service
Commission, the state superintendent of education, the commissioner of
administration, and the governor's chief of staff, deputy chief of staff,
executive counsel, and legislative director (informally called "Tier 1").
The next level of reporting applies to legislators, members of the Board of
Secondary Education (BESE), elected officials who represent a district with a
population of five thousand or more, each member of a state board or commission
that has the authority to spend, disburse, or invest more than one million
dollars in a fiscal year, and each member of a board or commission who is paid
$16,800 or more ("Tier 2").
Finally, the third and least stringent level of reporting applies to elected
officials representing a voting district with a population of less than five
thousand and members of state boards and commissions with the authority to
spend, disburse, or invest between ten thousand and one million dollars in a
Furthermore, Senate Bill 35 by Senator Chaisson (Act 15) prohibits the
transfer of anything of economic value to any person or governmental entity for
the purpose of circumventing the financial disclosure requirements imposed on
Senate Bill 37 by Senator Chaisson (Act 20) requires the Division of
Administration to establish and maintain a website that details state spending
with a searchable database, which is to be fully implemented by January 1, 2009.
CAMPAIGN FINANCE REFORM
House Bill 7 by Representative Tucker (Act 4) sets a limit of $10,000 on
individual contributions to gubernatorial transition and inaugural activities,
and requires that such contributions be disclosed.
Senate Bill 14 by Senator Marionneaux (Act 14) requires that, effective
January 1, 2010, third party campaign communications clearly state who is paying
for the ad and whether or not the candidate authorized the communication.
House Bill 73 by Representative White (Act 17) requires political
action committees that collect donations or spend more than $50,000 in a
calendar year, except those PACs affiliated with political parties, to
electronically file their contribution and expense reports beginning on July 1,
2009. House Bill 78 by Representative Leger (Act 25) phases in the
requirement of electronic filing of campaign finance reports for all major or
district candidates beginning January 1, 2010, with full implementation by
January 1, 2012. Beginning January 1, 2010, and through December 31, 2011, each
candidate for a major or district office that receives contributions or loans or
makes expenditures over $25,000 in the aggregate must file electronically. When
fully enacted on January 1, 2012, candidates must electronically file no matter
the amount of contributions, loans, or expenditures.
Senate Bill 29 by Senator Marionneaux (Act 26) requires third party
political committees organized under Section 527 of the Internal Revenue Code to
disclose their contributors and expenses on a monthly basis. Further, a
candidate is prohibited from using campaign funds to pay an ethics fine or
campaign finance disclosure fine.
Senate Bill 47 by Senator Adley (Act 27) increases the fine for
criminal violations of the law requiring the reporting of money spent and
received for canvassing efforts in a campaign. Any person who commits an
intentional criminal violation of these provisions shall be fined up to twice
the amount of such expenditure, or imprisoned for up to five years, or both.
CONFLICTS OF INTEREST
In a significant change to the Code of Governmental Ethics, Senate
Bill 1 by Senator Chaisson (Act 2) prohibits legislators, the governor,
statewide elected officials, state department secretaries, state prison system
wardens and assistant wardens, the director of the Civil Service Commission,
members of BESE, the state superintendent of education, college system
presidents, the commissioner of higher education, members of the Board of Ethics
and the ethics administrator, the executive secretary of the Public Service
Commission, and the governor's chief of staff, commissioner of administration,
executive counsel, and legislative director, as well as their spouses and
businesses, from contracting with the state.
Senate Bill 5 by Senator Chaisson (Act 8) eliminates the ability of an
elected official to vote on matters in which there may be a personal conflict of
interest. The elected official must recuse himself from voting, but may
participate in debate and discussion of the matter so long as the conflict is
ETHICS, ETHICS BOARD, & ETHICS ENFORCEMENT
House Bill 41 by Representative Tucker (Act 23) made what are perhaps
the two most significant changes to ethics enforcement procedures to come out of
the First Extraordinary Session.
The first change is the transfer of the power to adjudicate ethics charges
from the Board of Ethics to the newly created Ethics Adjudicatory Board, which
is to be composed of administrative law judges of the division of administrative
law. Although the Board of Ethics is no longer empowered to conduct hearings, it
remains empowered to administer oaths, subpoena witnesses, take evidence, and
require the production of relevant documents for purposes of investigating
ethics complaints and determining whether to bring formal ethics charges.
The second significant change made by Act 23 is the change of the standard of
proof for conviction of ethics charges from "any substantial evidence" to "clear
and convincing evidence." The "clear and convincing evidence" standard is
presently employed in any number of civil administrative contexts, including
disability retirement, worker's compensation, gaming, and the Louisiana
Administrative Procedure Act. "Clear and convincing evidence" is also the
standard of proof for charges brought by the Louisiana Attorney Disciplinary
Board. It does not appear that the "clear and convincing" standard of proof in
any way changes or limits the investigatory abilities and discovery devices
available to the Board of Ethics, as this standard of proof relates to the
hearing of charges once they have been brought, and not to either the
investigation of complaints or the determination of whether or not formal
charges and a public hearing are warranted in a particular case.
House Bill 6 by Representative Tucker (Act 3) expands ethics training for
public servants so as to require at least one hour of training every year of the
public servant's term of office, and imposes ethics training requirements on
lobbyists as well. This ethics training plan will be phased in beginning this
year, with all public servants not otherwise required to receive ethics training
being required to obtain their annual ethics training beginning January 1, 2012.
House Bill 29 by Representative Tucker (Act 10) requires that at least
three of the governor's seven appointees to the ethics board be attorneys with
at least eight years as a member of the Louisiana bar. Further, members of the
Board of Ethics may not participate in political campaign activities, hold
public contracts, or hold any elected office.
House Bill 65 by Representative Green (Act 16) prohibits a person from
qualifying for elected office if he or she owes $250 or more in ethics fines.
LOBBYING AND LOBBYISTS
Senate Bill 8 by Senator Chaisson (Act 9) limits the cost of food and
drink that may be provided by a lobbyist to a public servant to $50 per
occasion. However, the limit does not apply to national or regional
organizations' events, or to events connected with statewide organizations of
governmental officials or employees. This limit went into effect on March 20,
Senate Bill 11 by Senator Chaisson (Act 13) expands the information
that lobbyists must disclose on their registration and expenditure reports to
include not only their clients, but also how much they are paid by those
clients, their and their clients' business relationships with legislators and
executive agency officials and those public servants' spouses, the subject
matters for which they intend to lobby, and their expenditures on public
servants' spouses and children. These reports are to be made on a monthly basis
and include everything of economic value provided. The thresholds of $50 per
event and $250 per reporting period have been eliminated. These new reporting
requirements take effect on January 1, 2009, with the first of the new monthly
reports due by February 15, 2009.
Senate Bill 3 by Senator Chaisson (Act 19) eliminates the exception in
the ethics code that allowed elected officials to receive free tickets for
sporting and cultural events from those seeking to influence legislation or
obtain business with the official's agency. In particular, complimentary
admissions to professional, semi-professional, or collegiate sporting events and
fishing trips, hunting trips, or golf outings that are not associated with a
fund-raising events open to the general public are prohibited. However, there is
an exception that allows the acceptance of complimentary admissions to civic,
non-profit, educational, or political events when the official is a program
honoree, speech presenter, or panel member.
House Bill 56 by Representative Tucker (Act 12) creates the office of the
inspector general, which presently exists only by executive order of the
governor, and requires the legislature to provide adequate funding for the
office, prohibits the governor or the legislature from reducing the salary of
the inspector general during his term of office, and allows for the removal of
the inspector general by the governor with the approval of a majority of the
Senate Bill 53 by Senator Murray (Act 21) doubles the maximum sentence
for corrupt influencing to ten years imprisonment, or a fine of $10,000, or
Senate Bill 58 by Senator Martiny (Act 22) creates the crime of abuse
of office, which prohibits a public servant from using his or her office to
coerce someone to do something or to give something that the public servant is
not otherwise entitled to by nature of his or her office.
2008 REGULAR SESSION
The 2008 Regular Session saw a number of bills designed to clarify and
otherwise "fine tune" the reforms passed in the First Extraordinary Session.
House Bill 842 by Representative Gallot (Act 162) changes the deadline
for a candidate to file a financial disclosure statement from within 10 days of
becoming a candidate to within 10 days of filing a notice of candidacy.
A candidate is required to file a financial disclosure statement when he is a
candidate for an office for which the holder of that office would be required to
file a disclosure statement. Further, each designee of a member of a board or
commission is now included in the list of persons required to file a disclosure
statement. These disclosure provisions apply to persons holding a covered office
or position on or after July 1, 2008.
In an attempt to address the concerns expressed by many legislators,
among others, about the effect of the new disclosure requirements on the
willingness of certain board and commission members to serve, Senate Bill 718
by Senator Martiny (Act 472) creates a new "Tier 2.1" for members of boards
and commission that expend, disburse, or invest $10,000 or more in a fiscal year
(except for those who are already required to file in either Tier 1 or Tier 2),
members of the State Civil Service Commission, and members of the Board of
Commissioners of the Louisiana Stadium and Exposition District. These disclosure
reports are due by May 15 of each year during which the official holds office,
and by May 15 of the year after the official's term ends. Members of parish and
municipal governing authorities are excluded, as are members of the boards of
private nonprofit corporations not created by law.
House Bill 176 by Representative Abramson (vetoed) would have required
that the head of a statewide elected official's agency, and each appointed
member of a board or commission that has the authority to expend, disburse, or
invest one million dollars or more in a fiscal year, disclose any contribution
made by the agency head or board or commission member to the campaign of the
appointing elected official in excess of $1,000.
Other bills would have broadened the range of public officials required
to file financial disclosure reports with the Board of Ethics. House Bill 340
by Representative Morrell (subject to call-Senate final passage) would
require the wardens of state prisons to file annual financial disclosure reports
pursuant to the ethics code. House Bill 313 by Representative Tucker (pending
House & Governmental Affairs) would require judges, who are presently
exempted from the disclosure requirements imposed on other state and local
officials, to annually file a financial statement with the Board of Ethics.
House Bill 635 by Representative Green (subject to call-Senate final passage)
would make the financial disclosure requirements already applicable to state
legislators, certain elected officials, the members of the Board of Ethics, the
ethics administrator, members of certain state boards and commissions, and BESE
members, also applicable to the state inspector general, the legislative
auditor, the head of the governor's transition team, each member of the State
Civil Service Commission, and each member of the Board of Commissioners of the
Louisiana Stadium and Exposition District. House Bill 648 by Representative
Gallot (subject to call-Senate final passage) would make these financial
disclosure requirements applicable to each member of a local board or commission
that expends or disburses more than $10,000 but less than $1,000,000 of funds in
a fiscal year.
ETHICS, ETHICS BOARD, & ETHICS ENFORCEMENT
House Bill 290 by Representative Dixon (Act 128) requires the Board of
Ethics to provide to a public servant accused of an ethics violation, and to the
complainant, a detailed explanation regarding the alleged ethics violation,
including the specific factual allegations upon which the board based its
decision to investigate, and a copy of any complaint with the name of the
House Bill 1336 by Representative Aubert (Act 173) provides an exception
to the Code of Governmental Ethics that allows a person to obtain a permit, and
to enter into any transaction incidental thereto, under the provisions of the
state uniform construction code.
Senate Bill 53 by Senator Shaw (vetoed) would have provided that the
Board of Ethics shall not accept, consider, or investigate any complaint that
does not contain information identifying the complainant, including the
complainant's name and contact information. However, the board would still, by a
two-thirds vote, have been able to consider any matter that it had reason to
believe may have been a violation of any law within its jurisdiction.
Senate Bill 370 by Senator Dorsey (pending House & Governmental Affairs)
would have added the governor's deputy chief of staff, legislative director, and
policy director to the list of public servants who may not enter into contracts
directed to addressing needs arising from a gubernatorially declared disaster or
emergency when the public servant knows or should know that the contract is
funded with federal or state funds.
Senate Bill 691 by Senator Long (assigned to the Senate and Governmental
Affairs Committee) would have imposed criminal penalties on candidates for
elected office and their supporters who file false or frivolous complaints
against their opponents in an attempt to gain a political advantage.
House Bill 947 by Representative Hutter (vetoed) would have allowed a
public official to accept complimentary admission to a fund-raising event held
by or for the benefit of an educational institution, or to a fund-raising event
of a nonprofit organization that conducts educational programs.
LOBBYING AND LOBBYISTS
House Bill 844 by Representative Tucker (Act 709) allows a person who is
both an executive branch and a legislative branch lobbyist to file one
registration form and disclosure report, rather than separate reports. Further,
if a lobbyist is paid for both lobbying and non-lobbying services, he must
allocate his compensation accordingly and report only the amount received for
lobbying. This is the same requirement already in place for legislative