Enforcement of Ethics Rules by State Ethics Agencies: Unpacking the S.W.A.M.P. Index
September 12, 2019
The report on Enforcement of Ethics Rules analyzes how state ethics agencies implement their enforcement and sanctioning powers – and how transparent is that implementation. It provides findings on both the enforcement statistics of the ethics agencies of the 50 states and The District of Columbia with jurisdiction over legislative and executive branch officials, as well as a comparative scorecard, which ranks the states and the independent state agencies on the transparency and availability of information regarding their enforcement actions.
Four states, Colorado, Florida, Minnesota and Rhode Island received scores of 100 (on a scale of 0-100). Their ethics agencies produce annual reports which compile statistics on the number of complaints received, dismissed, resolved with a finding of no ethics violation, resolved with a finding of an ethics violation, and they make the decisions of the ethics agency publicly available in easily accessible fashion.
Eleven states (Colorado, Florida, Minnesota, Rhode Island, Massachusetts, West Virginia, California, Delaware, Kansas, Nevada, and Texas) received scores in the top 20th percentile, however, there is still room for improvement.
14 states received a score below 40, while a majority of states analyzed (23) score at or below 50.
The ethics agencies in two states, Mississippi and North Carolina, have absolutely no publicly available information regarding their enforcement actions and did not respond to requests for information.
ENFORCEMENT STATISTICS CHART – 2018
The Enforcement Statistics Chart compiles enforcement statistics of the independent ethics agencies of the 50 states and the District of Columbia with jurisdiction over legislative and executive branch officials.
Enforcement actions generally are necessary to ensure continued compliance with ethics rules and regulations. Some state ethics agencies do not have any investigative power; others have only limited sanctioning authority. Even with power and authority, some state ethics agencies do not appear to actively pursue investigations and sanctions. State ethics agencies often have discretion over the degree of enforcement and our investigation into the number of cases these agencies process shows that some agencies use this discretion to actively enforce, while others appear not to.
Our findings on enforcement actions and enforcement statistics, however, remain incomplete because many state ethics agencies do not provide comprehensive, publicly available information. Some provide absolutely no information.
There is tremendous variation in the enforcement powers of state ethics agencies and how they implement that power.
The sanctioning authority of most state ethics agencies is limited to imposition of monetary penalties – in many cases, this is a de minimus amount, unlikely to deter future improper actions.
Much of the state ethics proceedings are confidential so it is difficult to judge how effectively an agency implements its sanctioning power.
Only 19 state ethics agencies publish an annual or biennial report containing enforcement information.
30 agencies publish enforcement decisions on their website.
The report on Enforcement of Ethics Rules reflects the huge variation in enforcement efforts by state ethics agencies – and the lack of transparency of those efforts in many states. In addition to meaningful enforcement actions, state ethics agencies should strive to be transparent and publish information on complaints received, cases resolved, and sanctions issued.
A toothless ethics agency serves no purpose. Agencies need wide powers to investigate and sanction all government personnel.
Currently, seven agencies have limited or no investigative or sanctioning power.
Proceedings of the ethics agency should be open to the public once there is a determination that probable cause exists that a violation has occurred.
15 ethics agencies publish no information on complaints resolved with a finding of an ethics violation.
If an ethics agency determines that a violation has occurred, its findings and sanctions should be publicly available. Confidential letters of reprimand carry little weight in deterring behavior.
18 ethics agencies do not make their decisions and sanctions publicly available.
To increase incentives for compliance, penalties should be meaningful. Fines of $100 or $200 do not provide a deterrent. Most states have the authority to impose significant fines but do not do so. A few states are limited by statute and, in these cases, the amount of the fines allowed should be increased via legislation to meaningful amounts.
Only the Florida Commission on Ethics and the Hawaii State Ethics Commission have recommended that officials be removed from office for ethics violations.
The Minnesota Campaign Finance and Public Disclosure Board can only impose a fee of $5 a day, not to exceed $100, for failure to file financial disclosure reports on time.
Every ethics agency should publish annual reports on their enforcement efforts, even if not required to do so by statute. Doing so demonstrates a commitment to effective enforcement and provides a deterrent to improper behavior.
31 of 50 independent ethics agencies do not publish such reports.
Enforcement Statistics Chart, Transparency Scoring Chart, Rubric, and Ranking
Links to download and short descriptions of:
Enforcement Statistics Chart (Excel)
The Enforcement Statistics Chart compiles enforcement statistics of the ethics agencies of the 50 states and The District of Columbia with jurisdiction over legislative and executive branch officials. This chart is for the years 2016-2018.
Transparency Scoring Chart (Excel)
The Transparency Scoring Chart ranks and compares states and independent state ethics agencies based on transparency and the availability of enforcement statistics. This index scoring chart contains keyword answers to the research questions, and computes each state's index score question by question, and each state ethics agency score. NB: the Transparency Scoring Chart must be read side-by-side with the Transparency Scoring Rubric.
Transparency Scoring Rubric (Word)
The scoring rubric serves as the answer key to the scoring chart, matching index scores to succinct descriptions of full credit, partial credit, and no credit answers to the research questions (and the corresponding scoring chart keywords). NB: this document must be read side-by-side with our scoring chart.