Open Source Ethics Complaint

Hi everyone.

I am slam-slam-slammed these days, but I want to see if we can get a project moving here on my lunch break. Specifically, I'm asking that we come together to consider filing a State Ethics Commission Complaint, using the form that was sent to me based on a request I made this morning to the North Carolina State Ethics Commission.

The form is straightforward and I'm happy to be the person who files (swears) if we believe a complaint is truly in order.

...........................

Here's the email I received from the Commission:

Under the State Government Ethics Act, Chapter 138 of the North Carolina General Statutes, any individual may file a complaint against certain individuals covered by the Act. A list of those individuals covered by the Act and the Act itself are located on our website: http://www.ethicscommission.nc.gov/. The complaint must relate to actions which took place on or after the effective date of the Act, January 1, 2007, and describe “specific facts indicating that a violation of the Act has occurred.”

A complaint form is enclosed. Please note that the complaint must be sworn. Please let us know if you have additional questions about the complaint process.

............................

Here are the relevant sections of the form:

NATURE OF THE COMPLAINT

The Ethics Commission does NOT have jurisdiction over all public officials or state employees. G.S. 138A applies to legislators, legislative employees, public servants, and judicial officers. Please refer to G.S. 138A-3(30) for a list of those State employees included in the category of “public servants.” Also, a list of covered persons is posted on the State Ethics Commission’s website: www.ethicscommission.nc.gov.

1. Identify the person that you believe may have violated specific provisions of the Ethics Act:

Name: _______________________________________________________________

Job Title or Appointive Position of the person against whom this complaint is filed:

___________________________________________________________________________________

___________________________________________________________________________________

___________________________________________________________________________________

2. Provide the date(s) the alleged violation occurred: _________________________________________

3. Please provide a concise statement of the nature of your complaint and specific facts indicating that a violation of Chapter 138A (the Ethics Act) or Chapter 120 (the Legislative Ethics Act) of the North Carolina General Statutes has occurred. Please provide as much detail as possible and attach any documentation you have that supports your claim. Attach additional pages if needed.

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

Attach additional pages if needed.

4. If possible, check the statutory provision you believe has been violated (check all that apply):

Chapter 138A: the State Government Ethics Act
______ use of public position for private gain (§138A-31)
______ receipt of a prohibited gift (§138A-32)
______ receipt of other compensation (§138A-33)
______ use of nonpublic information for private gain (§138A-34)
______ conflict of interest while performing official duties (§§138A-35, -36, and -37)
______ Other (please explain)
________________________________________________________

__________________________________________________________________________________

___________________________________________________________________________________

A specific violation of the criminal law by a covered person in the performance of that person’s official duties (138A-12(b)(3)). Please specify the particular criminal law allegedly violated:
___________________________________________________________________________________

___________________________________________________________________________________

Section 126-14 of the North Carolina General Statutes:

______ promise or threat to obtain political contribution or support (§126-14)

5. Provide the names of other persons who may have information that would support your allegations.

_______________________________________________________________________________________

_______________________________________________________________________________________

_______________________________________________________________________________________

6. State whether the individuals and conduct complained of have been the subject of a prior complaint or proceeding of any kind. If so, state the place where the prior complaint was filed and its current status.

One of the very great things about the interTubes is the possibility of collaboration and transparency as part of the democratic process. So let's have the discussion wide-open and all-out, right here in public view, so anyone who wants to can see it and comment and further the debate. I believe that's how government should work, and I'm committed to doing all I can to set an example.

Maybe we'll get through all this and determine that no complaint should be filed. On the other hand, we might just set a new standard for civil discourse about a public official who deserves to be challenged for his behavior in office.

What say you?


Comments

relevant articles

about the press release business
http://www.newsobserver.com/579/story/555968.html

also from TBJ

Scrutiny heightened after Raleigh-based consulting group Banyon, Rock & Talent issued a press release stating that Merritt would be providing services for the company with his son, Dale.

The press release for the private work touted Merritt's public position - quickly drawing the ire of bloggers and government watchdog groups.

The firm pulled the release shortly thereafter.

original article on that is here

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

the relevant statutes

§ 138A‑31. Use of public position for private gain.

(a) Except as permitted under G.S. 138A‑38, a covered person or legislative employee shall not knowingly use the covered person's or legislative employee's public position in an official action or legislative action that will result in financial benefit, direct or indirect, to the covered person or legislative employee, a member of the covered person's or legislative employee's extended family, or business with which the covered person or legislative employee is associated. This subsection shall not apply to financial or other benefits derived by a covered person or legislative employee that the covered person or legislative employee would enjoy to an extent no greater than that which other citizens of the State would or could enjoy, or that are so remote, tenuous, insignificant, or speculative that a reasonable person would conclude under the circumstances that the covered person's or legislative employee's ability to protect the public interest and perform the covered person's or legislative employee's official duties would not be compromised.

(b) A covered person shall not mention or permit another person to mention the covered person's public position in nongovernmental advertising that advances the private interest of the covered person or others. The prohibition in this subsection shall not apply to political advertising, news stories, news articles, the inclusion of a covered person's position in a directory or biographical listing, or the charitable solicitation for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3). Disclosure of a covered person's position to an existing or prospective customer, supplier, or client is not considered advertising for purposes of this subsection when the disclosure could reasonably be considered material by the customer, supplier, or client.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

Slam dunk

Merritt's toast....and I saw we need more than one filing. They need to be flooded with them.

Robin Hayes lied. Nobody died, but thousands of folks lost their jobs.



***************************
Vote Democratic! The ass you save may be your own.

Question from the Back of the Room

The firm pulled the release shortly thereafter.

Okay - the press release was pulled; my question is: Is he still doing work for them with/through his son and is that in itself a conflict?

Or, what sort of consulting does Banyon, Rock & Talent do?

Does it Pass the Sniff Test?

auditor + consultant + retirement funds = hmm.....

from the one article

more specific quote for your questions

State Auditor Les Merritt has decided to stop providing investment advice to private clients, and he plans to end the practice completely by June 30, his spokesman confirmed Thursday.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

I wrote about it not long ago.....well....

I wrote that the MSM wrote about it. :)

Robin Hayes lied. Nobody died, but thousands of folks lost their jobs.



***************************
Vote Democratic! The ass you save may be your own.

Which Means He's Been Doing it for -

he plans to end the practice completely by June 30

How Long?

2-3 months



Robin Hayes lied. Nobody died, but thousands of folks lost their jobs.



***************************
Vote Democratic! The ass you save may be your own.

the press release

was issued in mid march. I have no idea when he actually started.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

it does

but anything from that is going to involve Roy Cooper and not the Ethics Commission I think.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

Hmm....

I can't really say with authority because I'm not privy - BUT

It sure does look like this 'voting by dead people' hoorah was brought up with the intent to derail same day voting. Either by stalling the legislation or planting seeds of doubt in people's minds through misinformation. I can't say if that is some sort of 'offense' or not - but it stinks like dead worms.

i don't have the entire story, i'm sure...

...but based on the three news stories linked from this page, and a quick look at the statute...

...he can defend your likely charge.

i assume you intend to charge that advertising occurred with the release of the announcements.

(b) A covered person shall not mention or permit another person to mention the covered person's public position in nongovernmental advertising that advances the private interest of the covered person or others. The prohibition in this subsection shall not apply to political advertising, news stories, news articles...

if it was possible to obtain internal or external "advertising" that originated from merritt or the two firms with which he is now associated, that would be different-but i suspect "notices announcing our new associate" will be what is found, as opposed to "advertising".

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

A press release

sent to the media and prospective clients seems to fall under this statute. Im confused, what do you see as the difference?

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

when considering federal securities law...

...we see a differentiation between an "announcement" and a "solicitation"; and in this case i would attempt to base a defense on creating that differentiation in the mind of a jury.

my defense would be that a press announcement is a part of the repetorial process, thus making it a legal act.

i would stress that my client made "no offerings or solicitations" in these announcements, and that the absence of "offerings or solicitations" precludes the possibility of the finding that "advertising" occurred.

and i would assert that the "potential clients" are also media representatives, in that they disseminate information within their industries.

i would point to newsletters or blogs published by those "potential cleints" and assert that these prove the media status of those to whom my client disseminated the announcements.

let's review the text of the statute:

(b) A covered person shall not mention or permit another person to mention the covered person's public position in nongovernmental advertising that advances the private interest of the covered person or others. The prohibition in this subsection shall not apply to political advertising, news stories, news articles, the inclusion of a covered person's position in a directory or biographical listing, or the charitable solicitation for a nonprofit business entity qualifying under 26 U.S.C. § 501(c)(3). Disclosure of a covered person's position to an existing or prospective customer, supplier, or client is not considered advertising for purposes of this subsection when the disclosure could reasonably be considered material by the customer, supplier, or client.

when i read this, based on what i've seen to this point, i see wiggle room-and reasonable doubt.

i have not reviewed the legislative intent or the case law, but it is possible that a defense attorney might find further help there.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

well

I have taken one class on law, and that was constitutional law and civil liberties. So this is the point where I stare at you blankly and hope that with enough smiling and head nodding you will leave me alone.

I think this type of complaint would go to an ethics board and to the legislature, not to a lawyer and a court.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

any ethics board decsion the rs don't like...

...will end up reviewed in court, making it hard to tell the difference in the end.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

So this is the point where I

So this is the point where I stare at you blankly and hope that with enough smiling and head nodding you will leave me alone.

That's funny. I try that with my law school professors all the time.

No - not the advertising

I'm talking about the DOJ dead voter issue.

it could be I'm in the wrong thread for that.

Actually - the advertising bit doesn't bother me near as much as making an issue to purge voter rolls ... YMMV.

But ... I am often confused. This may be one of those days.

on that issue

the attempt to purge the voter rolls, its gonna be a little harder.

im still doing some looking in the statutes, but its not easy.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

my offhand suspicion...

...is that the best vehicle for "purged voter" redress could be a class-action suit asserting a federal civil rights violation that creates a consent decree limiting the ability of the sboe to purge in the future.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

since this was headed off

would there be any case for such a complaint?

and would the Bush DOJ actually do anything?

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

depending on the circumstances...

...it's still possible to move forward.

an example might be a suit that seeks a decree in which sboe agrees to outside review of any furture voter purges, or a suit that seeks a court-appointed "special master" to oversee this aspect of sboe operations. you may recall school bussing cases from times past that were settled in this manner.

it is not necessary for the doj to sign on to a discrimination suit-such an action can be brought by a private individual, or group of individuals. here's the relevant section (42usc(21)(1)(1983)) of the us code:

Section 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.

basically it's saying anyone can sue anyone for a civil rights violation-but it's tougher to sue a judge.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

anticipating your next question...

...if i were a plaintiff in such a suit, i would overcome the objection that the purge was caught and stopped by seeking evidence that would support the counterclaim that sboe's purge was part of a "continuing pattern of behavior" that justifies the court's involvement and creates the standing needed for the plaintiff class to pursue it's lawsuit.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965

but

we like the SBOE. Gary Barlett is doing a great job. Its Merritt sticking his nose where it doesnt belong that is the problem.

Draft Brad Miller-- NC Sen ActBlue

"Keep the Faith"

my error...

...in the revised example, plaintiff seeks injunctive relief barring merritt form further involvement in sboe's activities based on his "continuing pattern of behavior" (assuming such evidence exists-my ignorance is showing here!) that denies the plaintiff class the right to vote; and justifies the court's involvement, creating the standing needed for the plaintiff class to pursue it's lawsuit.

"...i feel that if a person can't communicate, the very least he can do is to shut up." --tom lehrer, january 1965