The state Ethics Board must change to save itself.
Getting some culture
At the height of the legislative caucus scandal, in October 2001, the state Ethics Board made a deal with Wisconsin’s legislative leaders. The Ethics Board agreed not to investigate allegations of the leaders’ misuse of taxpayer money for political purposes, and in exchange the partisan caucuses controlled by these leaders agreed to disband. Remember that?
The Ethics Board’s spokespeople said they wanted to “change the culture” of the Legislature. Then, almost immediately after the agreement most of the “disbanded” caucus staffers were moved to the legislative leaders’ staffs, creating a shadow caucus system that remains to this day. Who got the better end of this deal?
If there have been some changes in how the Legislature handles political activity, they have happened because of the investigations and criminal complaints filed by the Dane and Milwaukee County district attorneys, not because legislators fear the Ethics Board will become a more vigilant watchdog over the ethical behavior of public officials.
This should lead us to wonder just what is the purpose of this board. Is it to vigorously protect the public interest, or is it to make public officials comfortable in the knowledge that there is always a way to avoid accountability?
The case of former Outagamie County District Attorney Vince Biskupic provides a good picture of how the Ethics Board works.
Stories that Biskupic had agreed not to charge potential criminal defendants if they agreed to pay money to charities or a crime prevention fund he controlled began circulating during his 2002 Attorney General campaign. These were serious allegations, raising questions about whether or not these decisions to prosecute were based on the strength or weakness of the facts in the case or on the accused person’s ability to pay. What we are talking about is not merely the appearance of “justice for sale,” but the actual practice of it.
For whatever reason, the Ethics Board did not launch an investigation until May 2003, six months after the election that Biskupic narrowly lost to Peg Lautenschlager. Its findings were released in late October 2003, more than a year after the allegations first surfaced. The Ethics Board said its job was to determine if Biskupic improperly used his government office for his own private benefit by requiring some potential criminal defendants to pay money to the fund he controlled.
Instead of sending a clear and unambiguous message that these agreements are illegal and cannot be tolerated in a democratic society, the board equivocated. First, its decision says, “Using one’s position as a district attorney to obtain money over which the district attorney exercises sole control can (emphasis added) be a use of office for private benefit of the district attorney that violates s.19.45(2), even if the money is subsequently used for a charitable purpose.” Then it goes on to say that since Biskupic did not use the account for personal profit or gain “…no further proceedings seeking a penalty are warranted.”
The Ethics Board seems to assume there is no personal benefit if there is no financial gain, when the truth is that seeking financial gain is not the most evil of temptations that can lead a public official astray. To overlook the harm done to the underlying principles of democracy because there is no financial gain misses the point altogether. Do all our citizens stand equal before the law, or can those with money buy their way out?
A district attorney is an elected official. Being seen before the public in a positive light is likely to translate into votes. What better means to look good than to have one’s picture in the paper as the benefactor of a program using children’s artwork to send an anti-crime message? And the charities that received contributions through these agreements must have been delighted and grateful to be the beneficiaries of the D.A.’s largess. His image is enhanced. This is personal benefit.
If financing these worthwhile causes allows potential criminal defendants to avoid prosecution, and only those who can afford a contribution, then this is an abuse of power. It is a high price for society to pay in order for a public official to improve his election chances.
In the end, the Ethics Board’s only action was to send out a letter to district attorneys saying they should not make these kinds of agreements and to call for new legislation banning them. Biskupic now publicly claims he has been cleared of wrongdoing.
Yes, the Legislature needs to pass a new law. The law should be one to “change the culture” of the Ethics Board, to turn it into a vigorous watchdog of abuses that undermine our democracy. Senators Ellis and Erpenbach have introduced such a bill in Senate Bill 11, and right now it is languishing in the Senate Organization Committee. Our public officials can continue to be comfortable that the Ethic Board will not hold them accountable for their abuses of the public trust.
It time to recognize that the current Ethics Board is not up to its task. It has failed because it was structured to be weak and vulnerable to political influence, and it is both.
December 4, 2003
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Gail Shea served as campaign finance and elections administrator with the state Elections Board from 1987 to 1995, and was the founding executive director of the Wisconsin Democracy Campaign.