Georgia probe highlights political problems with state ethics commissions

The new head of Georgia's ethics commission has filed subpoenas demanding extensive financial, bank, and payroll records from the campaign of Democratic gubernatorial candidate Stacey Abrams and several left-leaning groups that registered and turned out voters — particularly minority voters.

The Atlanta Journal-Constitution recently obtained the subpoenas, which were filed on April 26. That they were filed comes as no surprise: Four days after he started the job back in March, commission director David Emadi said he planned to seek records from Abrams' campaign. For its part, the Abrams' campaign criticized the approach, calling it a "political vendetta" and saying it would have taken immediate action to rectify any problems found in the normal post-election audits. 

The actions by Emadi — a Republican who formerly served as a Douglas County prosecutor, and who contributed $600 to the 2018 campaign of Abrams' Republican opponent, Brian Kemp, now governor — have sparked questions about inappropriate partisanship at the agency, whose formal name is the Georgia Government Transparency and Campaign Finance Commission. For his part, Emadi has denied charges of partisanship and has said every 2018 gubernatorial candidate is "under active audit and investigation as is policy."

This is not the first time Georgia's ethics commission has faced criticism over partisanship.

Emadi replaced former director Stefan Ritter, a Republican appointee who quit after staff members filed complaints claiming he watched pornography at work and failed to pursue complaints when they alerted him to potential problems with campaigns, including Abrams'. Instead, they said, he told them to let the candidates correct the errors.

Ritter, in turn, had come to the commission after the previous director, Holly LaBerge, was sanctioned and fined for her role in a whistleblower lawsuit filed by her predecessor, Stacey Kalberman. In 2015, a Fulton County jury found that Kalberman was wrongly forced out of office as retribution for investigating the 2010 campaign of former Gov. Nathan Deal, a Republican. Deal's office recruited LaBerge to replace Kalberman.

Georgia's ethics commission is made up of five members. Three are appointed by the governor, one by the state Senate Committee on Assignments, and the other by the state House speaker. Emadi, appointed by the commission members, leads an executive staff that carries out the organization's day-to-day functions.

But the way that the ethics commission is appointed and staffed in Georgia — and in many other states across the South and nation — creates an inherent conflict of interest: The commissions are charged with policing the same government officials who control their members, funding, and regulatory power.

Question of independence

The first state to establish an ethics commission was Hawaii, in 1968. The number of states creating such commissions spiked in the 1970s following the Nixon administration's Watergate scandal, which involved illegal secret campaign contributions to the president's re-election campaign. The most recent state to establish one was Virginia, in 2015.

Comparing the commissions directly is complicated by the fact that their functions differ by state. However, government watchdogs have long raised concerns about how they're structured. In 2012, for example, the Center for Public Integrity (CPI), an investigative journalism nonprofit, released a groundbreaking, data-driven report that looked at the underfunding and partisan politics plaguing the commissions.

At the time, 41 states had some sort of ethics commission, with the remaining states assigning such functions to other agencies. Of those 41 states, 28 received grades of either D or F from CPI. Among the eight states that flunked were South Carolina and pre-commission Virginia, with Georgia coming in dead last.

"The question of political independence is one that has plagued most ethics commissions," the report stated, "and few states have found solutions."

For example, the Texas Ethics Commission has eight board members with staggered terms: four appointed by the governor, two by the lieutenant governor, and two by the House speaker. To open an investigation, six of the eight board members must agree, which makes for what the CPI called a "dysfunctional body" that's rarely proactive. Instead, it relies on outside complaints and tends to focus on on minor errors rather than serious violations.

The Florida Commission on Ethics — a nine-member body with five members appointed by the governor, two by the state Senate president, and two by the state House speaker —  is legally barred from undertaking proactive investigations. Earlier this year, for example, it launched an investigation of 2018 Democratic gubernatorial candidate Andrew Gillum after receiving a complaint filed by Tallahassee businessman and municipal gadfly Erwin Johnson (a self-described "Kennedy Democrat"). It found probable cause Gillum violated state ethics laws by accepting undisclosed gifts from lobbyists, including a ticket to the hit musical "Hamilton" and a Costa Rican vacation; the former candidate settled the matter by paying a $5,000 fine.

Meanwhile, in North Carolina, the ethics commission can investigate complaints only if they show "probable cause" of a violation — a higher standard than the "reasonable suspicion" law enforcement needs to pursue a case, as CPI pointed out.

Funding matters

In recent years, the North Carolina Ethics Commission was held hostage in a partisan political fight that pitted a Republican legislature against a Democratic governor in the courts.

Unlike Georgia's commission, North Carolina's historically has focused on financial disclosures and lobbying and has not handled campaign finance matters, which fall under the purview of the state Board of Elections. But in 2017, following the election of Gov. Roy Cooper, the legislature passed a bill to change how the elections board is appointed and to merge it with the ethics commission — part of a broader legislative challenge to Cooper's executive power.

At the time, the state elections board had five members, all appointed by the governor, with three of them traditionally from the governor's party. The bill would have expanded the board to eight members, four Democrats and four Republicans, with the governor making his appointments from lists submitted by Democratic and Republican state party chairs. It also would have required a Republican to chair the board in presidential and gubernatorial election years and a Democrat during midterms.

Cooper vetoed the bill. When the legislature overrode his veto, Cooper sued. In the end, the courts sided with Cooper, and the ethics commission was reconstituted as an independent agency with two members appointed by the House leader, two by the Senate leader, and four by the governor.

That's the same structure it had when CPI examined its work — and found it wanting. According to the group's analysis, North Carolina's commission received more than 300 ethics complaints from when it was established in 2006 through 2010, but it initiated just 18 investigations in that time.

Meanwhile, a separate 2014 Carolina Public Press (CPP) investigation into North Carolina's commission found what it called "a bipartisan and vigorous effort to enforce ethics laws that's constrained by a lack of resources, strict confidentiality rules and limited enforcement powers, and burdened by an ever-expanding mandate."

The CPP analysis found that the North Carolina commission referred for prosecution only two of the more than 500 ethics-related complaints it had received at that time, and details on those cases had not been disclosed. It also found that while the number of ethics advisory opinions the commission offered had steadily increased over the years, most remained confidential.

In addition, the commission's chair told CPP that while his understaffed staff had become more efficient in order to handle new tasks being assigned by the legislature, it was still "pretty pressed to get it all done."

And when it comes to having an ethics commission free from political influence, funding and staffing matters. For example, a 2015 study found that commissions with greater financial and personnel capacity are freer from political influence. Other important factors the study documented were which branch of government is appointing the commission and which is being overseen, how hard it is to remove a commission member, and ensuring standards of competence are met.

In Georgia, meanwhile, Abrams' campaign has turned over thousands of the requested documents but is refusing to hand over those involving the New Georgia Project voter registration group and state Sen. Nikema Williams, chair of the state Democratic Party, saying the request is irrelevant and exceeds the commission's authority. The campaign also continues to question the ethics commission's focus on groups registering minority voters — a concern the state's ACLU shares.

"We should ask these politicians why they seem to be targeting only organizations led by people of color," said ACLU of Georgia's Andrea Young, "and whether they also intend to investigate any alleged technical violations by other organizations."