February 25, 1999

ATTORNEY GENERAL SAYS LAWMAKERS MUST POLICE CONFLICTS THEMSELVES

By Jeff Mapes of the Oregonian Staff

1999 Legislature

Summary: Hardy Myers' opinion that the ethics commission can't get involved opens debate about whether legislators can do the job

Oregon legislators no longer will have the state ethics commission looking over their shoulders to make sure they reveal when they have a conflict of interest on a bill.

Instead, legislators themselves must judge whether one of their own broke the state law requiring them to reveal when a piece of legislation would financially affect them, according to an opinion state Attorney General Hardy Myers issued Wednesday.

The opinion cast aside a key piece of Oregon's post-Watergate ethics law and sparked debate about whether legislators could adequately police their conduct.

"Sure, I can do that," said House Majority Leader Steve Harper, R- Klamath Falls, "but that sounds like a conflict of interest to me. . . . If I were the guy on Main Street, I'd have a problem with that."

L. Patrick Hearn, executive director of the ethics commission, said it was better for "an impartial third body" to investigate these complaints.

"I think the public would see this as the fox watching the chicken coop kind of thing," Hearn said.

But Senate President Brady Adams, R-Grants Pass, who in November asked the attorney general to address the issue, said he was confident that lawmakers could investigate alleged violations, just as Congress has internal committees to look into ethics complaints.

"Not only can we do that job, but we have to do it," said Adams, who has had the legislative counsel draft rules for setting up committees to handle such complaints.

"We're intelligent enough, fair enough, creative enough to do the job," said House Speaker Lynn Snodgrass, R-Damascus. "I believe we can judge our own. . . . We understand the situation maybe better than those on the outside."

The request for the opinion stemmed from a 1997 complaint against Sen. Neil Bryant, R-Bend.

The state ethics panel, known formally as the Oregon Government Standards and Practices Commission, exonerated Bryant in a case involving a bill on destination resorts that affected a client of Bryant's law partner.

Afterward, Bryant said he and other senators questioned whether these cases should be under the jurisdiction of a body separate from the Legislature, and that sparked the request for the opinion.

The attorney general's office noted that the state constitution says legislators shall not be "questioned in any other place" for "words uttered in debate in either house."

Although this clause -- like a similar one in the U.S. Constitution -- aims to protect lawmakers' ability to engage in unfettered debate, the attorney general's office said it also covered conflict-of-interest declarations.

The opinion said the ethics commission "is one of the 'other places' that is constitutionally precluded from adjudicating legislators for their legislative activities."

The opinion does not cover officials of state boards or commissions, or local elected officials, who also must declare potential conflicts of interest.

The requirement that legislators reveal potential financial conflicts when they vote on a bill was part of a package of ethics reforms the Legislature put on the November 1974 ballot. Voters overwhelmingly approved it just months after Richard Nixon resigned as president in the midst of the Watergate scandal. The governor appoints the seven-member panel, four of whom are recommended by legislative leaders from both parties.

With this opinion, "The public is probably going to be giving up a certain amount of its enforcement powers," said David Schuman, the deputy attorney general. But he said that the ethics commission still could issue reports and that the Legislature could decide to punish members who violate the law.

"Basically, they can do anything," said Gregory Chaimov, the legislative counsel. He said miscreants could face such penalties as a fine, the stripping of committee assignments or even expulsion. He said his proposed rules, which neither the House nor Senate has adopted, would allow leaders to appoint a committee to investigate any complaint and recommend a course of action to the full chamber.

John DiLorenzo, a Portland lawyer who has represented several clients before the ethics commission, said Congress had proved that lawmakers could investigate their own.

"What about the United States Senate?" he asked rhetorically. "The Senate ethics committee took some fairly significant action against Sen. (Bob) Packwood."

Hearn, the ethics commission director, said that besides the Bryant case, his panel has investigated one other lawmaker regarding a conflict of interest declaration during the eight years he has held the job. That legislator, former Rep. Ted Calouri, R-Beaverton, also was exonerated.

However, there have been several cases involving local officials accused of not declaring a conflict of interest, and a bill was introduced in this Legislature that would ease the requirement for all public officials, including legislators.

House Bill 2585, sponsored by Rep. Kevin Mannix, R-Salem, would excuse officials from disclosing the nature of a conflict unless another member of the public body asked them to do so. Mannix, a lawyer, filed the bill after representing former Stayton Mayor Daphne Girod before the commission. The panel found that Girod failed to describe why she had a potential conflict on council actions that could affect a development partly owned by her husband. No civil penalty was issued.

You can reach Jeff Mapes at 503-221-8209 or by e- mail at jeffmapes@news.oregonian.com.