Massachusetts Ethics Commission left with more bark than bite

Uncovering all the bad apples in the seemingly bottomless barrel of public servants may be virtually impossible -- at least in Massachusetts. Yet the State Ethics Commission has had considerable success in enforcing the commonwealth's perhaps less-than-perfect conflict-of-interest law. The seven-year-old agency has handled its assignment with sensitivity and in the process has earned the respect of civic activists and public officials alike.

Continued effectiveness of the Ethics Commission is, however, by no means assured -- not because the panel lacks zeal but rather because the scope of its authority is now in doubt.

A July 9 decision by the Massachusetts Supreme Judicial Court has put on hold the agency's power to punish public employees and elected officials for violations of the ``standard of conduct'' provisions of the conflict-of-interest statute. While it would be an oversimplification to suggest, as some have, that the ruling left the watchdog toothless, it did reduce its bite, by finding that the commission lacked the authority to levy fines.

The case at hand involved a conflict of interest by a state nursing-homes inspector and not a municipal employee. But the high-court decision indirectly raised the question of whether the ethics panel has jurisdiction over those who work for local governments.

Clearly, such uncertainties should be removed so the commission created to enforce the state's conflict-of-interest and financial-disclosure laws can do its job. Until the agency's authority is clarified, some 175 investigations have been suspended.

While some public employees and elected officials would just as soon have no Ethics Commission looking over their shoulders, the panel is not going to fade away.

House Speaker George Keverian (D) of Everett, whose legislative efforts contributed mightily to passage of the 1978 statute establishing the watchdog agency, remains one of its staunchest backers. His commitment to an Ethics Commission with sufficient reach and clout is underscored by his sponsorship of a measure eliminating any question there may be about the agency's authority.

Explaining that the legislation ``is in keeping with what he believes his fellow lawmakers intend the Ethics Commission to be -- a totally independent and responsible civil enforcement agency,'' he pledges to press for the bill's approval.

Favorable House action can be expected. But there is no hint of such enthusiasm in the Senate, where things frequently move more slowly, unless the matter involved is one of special interest to the Senate leadership.

Had Mr. Keverian been concerned that irreparable harm might be done to the Ethics Commission through any delay in action, there is little doubt legislative leaders would have seen to it the matter was dealt with before the lawmakers began their unofficial vacation July 20. On occasion, legislators in both chambers have pushed urgent matters through in a matter of hours.

If, as the speaker holds, the senators and representatives really want a strong, unshackled Ethics Commission, there was no good reason why his legislation could not have been hustled through before the recess began, instead of just being filed for future consideration.

The Keverian measure, it should be noted, contains an emergency clause providing for it to take effect immediately on passage. The bill also specifies that any complaints involving municipal employees pending before the commission at the time of the Supreme Court decision are covered, and investigations would be reopened.

But such an arrangement could be challenged in court. For that reason some kind of a stopgap measure is needed, one setting forth in simple terms that it is the intent of the Ethics Commission's enabling statute to provide for civil penalties for standards-of-conduct violations. Then, if any legal fine-tuning were necessary, it could be done later by the lawmakers.

Obviously, the presence of a special watchdog -- even one with sharp teeth as well as a loud bark -- cannot of itself guarantee that everyone in state, county, and municipal government will obey the law and shy away from even the appearance of conflicts of interest.

Seeing to it that the Ethics Commission has whatever tools it needs, however, will go a long way toward strengthening public confidence in the integrity of statet employees and officials. That's what the Keverian legislation is all about and that's why Common Cause and others dedicated to making the conflict-of-interest law work are solidly behind it and have no intention letting it become lost in the legislative thicket.

From its inception, first under the chairmanship of Harvard Law School Prof. James Vorenberger and, in recent years, under Boston University law Prof. Colin Diver, the five-member ethics panel has proved a valuable protective force. Handling some 1,500 complaints in seven years certainly has been no simple feat.

Whatever its shortcomings, the Ethics Commission has never shied away from pursuing wrongdoing by public employees or officials, including some with powerful connections, including Dennis Flynn, the brother of Boston Mayor Raymond L. Flynn. The Fire Department official was fined $1,000 this spring for using a city vehicle and gasoline to move things to a summer place on Cape Cod, in violation of standard-of-conduct requirements.

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