Some state ethics cases are getting dismissed before they ever get to trial to determine guilt or innocence.
The reason is a dispute over how much information the Louisiana Board of Ethics must share with the accused as they prepare to defend themselves against conflict of interest, nepotism and other allegations.
The Ethics Adjudicatory Board, the panel that hears the cases, has dismissed several cases based solely or partly on the Ethics Board’s failure to turn over evidence. Lawyers are more frequently raising the issue as they defend their clients.
The Ethics Board took the evidence fight to Baton Rouge state court in the first case and the court said withholding the information would infringe upon the accused’s “due process” rights. The board appealed the decision in the case against St. Gabriel Police Chief Kevin Ambeaux.
The Ethics Board brought charges against Ambeau involving his ownership of a private security business while he served as police chief. The Ethics Board argued that doing both jobs was a conflict of interest. Ambeau countered that particular state law applied to sheriffs but not to police chiefs.
There’s been no court resolution.
Meanwhile, the Ethics Board continues to bring charges and provide the information it thinks is required during discovery.
“We do not agree with the decisions they have come down with,” said Ethics Board chairman Blake Monrose.
Monrose said the dispute will likely be resolved in the 1st Circuit Court of Appeal or the Louisiana Supreme Court. “Once the court tells us we will know this is what we can do,” he said.
The other option is for the Legislature to act, Monrose said.
“If the Legislature wants to step in and say this is the law, this is what is confidential and this is what’s not, this is what is privileged and this is what’s not, then we don’t have to worry about the courts making the decision,” Monrose said.
The evidence issue cropped up in the wake of a 2008 law change which took judicial powers away from the Ethics Board and vested them in panels of administrative law judges called Ethics Adjudicatory Boards.
The Ethics Board became the investigatory and prosecutorial body.
The documents at issue include the investigative reports provided to the Ethics Board on which it based charges as well as transcripts and recordings of executive sessions during which the case was discussed.
The Ethics Board has used the privacy protections in the ethics code and attorney-client privilege as well as arguments that the documents are work products and protected from disclosure. More recently the board has added the deliberative process privilege.
Lawyer Gray Sexton, who had fought for records involving his clients, said the Ethics Board seems to be “picking and choosing” which documents it wants to produce. Sexton joined in pleadings in the Ambeau case on behalf of some of his clients.
In two recent cases, Sexton said the board opted to produce investigatory reports although some information was redacted.
In a recent case involving client former St. John the Baptist Councilman Steve Lee, the Ethics Adjudicatory Board dismissed charges based partially on the board’s failure to produce records, he said. The EAB cited the Ambeau case in its ruling.
“The Ethics Board is clearly a plaintiff in a civil action and full and complete discovery is in the interest of both parties,” said Sexton, who was the state’s long-time ethics administrator.
Sexton said the only exceptions should be if information is “subject to some work product or attorney-client privilege.”
Kathleen Allen, the current ethics administrator, said the agency provides the documents it is required to provide.
“We provide the documents we will use at trial and what documents we obtained in connection with making the case as well as a list of witnesses. There will be no surprises when we get to a hearing,” said Allen.
“There’s not a whole lot of dispute to the facts of these cases. It’s the application of the law to the facts provided,” she said. “There’s no prejudice to the parties if they don’t have the information. Any other attorney-client would have these privileges.”