Lawyers, Guns and Money

Quarterly FEC reporting period ending

Just in case you haven’t received a dozen emails from federal election candidates informing you of the impending deadline, today is the last day in the quarter for fundraising that will be included in the next FEC reports for candidates for Congress and U.S. Senate.

Brace yourself and hang on to your wallet today.

Senator Don Balfour indicted

The Office of Attorney General Sam Olens released a statement on Friday that a Fulton County Grand Jury indicted state Senator Don Balfour with eighteen counts, including 16 counts of Making a False Certificate (O.C.G.A. § 28-1-8), one count of Theft by Taking (O.C.G.A. § 16-8-1) and one count of False Statement and Writing (O.C.G.A. § 16-10-20).

Here is a copy of the indictment if you’re interested in reading it.

Balfour’s lawyer told 11Alive news that they deny the charges,

“Our investigation revealed that he might have made some inadvertent mistakes, but he certainly didn’t intentionally take anything from the state,” said attorney Patrick McDonough.

The essence of the allegations is that Balfour turned in reimbursement and per diem expenses for days that he was not entited to anything because he was out of state and only work that takes place in the state is reimbursable.

Previously, Balfour agreed to settle a complaint before the Senate Ethics Committee by paying a $5000 fine and reimbursing the state approximately $1200. At the time, Balfour said,

“I inadvertently made some mistakes,” Balfour said shortly before the deal was announced. “I’ve corrected those mistakes and we’re talking to the committee about them.”

Senator David Shafer, President Pro Tem of the Senate, told Jim Galloway,

“Our hearts go out to the members of Senator Balfour’s family.”

“The Senate takes seriously its responsibility to safeguard the tax dollars of this state.  We appointed a new Senate Rules Chairman earlier this year, and his first official act was to appoint the Audit Subcommittee required by state law.  The Audit Subcommittee has been diligently working to review and examine legislative expense accounts. The Audit Subcommittee met as recently as August 8 and will soon meet again.”

Once Governor Nathan Deal receives a copy of the indictment, he will name a panel of the Attorney General and one member each of the State House and Senate to a committee that will recommend whether to suspend Balfour from his Senate seat.

Earlier this year, State Rep. Tyrone Brooks, a Democrat, was indicted by the Feds and the panel named in his case by Gov. Deal unanimously recommended against his suspension.

One difference between the Brooks case and Balfour’s when it comes to the panel will be that allegations against Brooks did not relate to his work as a legislator, while those against Balfour relate directly to his requesting and receiving reimbursement and per diem for performance of his legislative duties.

When DeKalb County CEO Burrell Ellis was suspended earlier this year after being indicted for an alleged shakedown of county vendors for campaign contributions, it was argued that the allegations related directly to his elected position and the panel named in his case recommended suspension.

It’s worth noting that in December of 1999, Georgia Senator Ralph David Abernathy, III was convicted of 18 felony counts, comprising 5 counts of theft by taking, 5 counts of false statement, 5 counts of violating his oath of office, 2 counts of forgery and 1 count of influencing a witness in Fulton County Superior Court. The original indictment charged him with stealing $13,000 through phony state expense reports and forged receipts, and the convictions involved $5700 in fake expense reimbursements and offering to pay his secretary to lie about it.

Two points I’d like to make here. First, the “ethics reform legislation” passed this year by the General Assembly does nothing to prevent any of the conduct alleged against State Rep. Tyrone Brooks, DeKalb County CEO Burrell Ellis or Senator Don Balfour.

Second, I wrote on May 18, 2012, more than a year ago, that if I were in Balfour’s shoes, “I’d be consulting a criminal lawyer now, in addition to ethics counsel.” I say that not only because I told ya so, but to underscore that if you find yourself in elected office and accused of wrongdoing, you’d be wise to treat it as a potential criminal case that might be headed toward you and not just a political problem.

Finally, I’d like to note that while I often disagree with Jim Walls of AtlantaUnfiltered.com, it is impossible to write about this story without acknowledging that his research first raised questions about reimbursements while Senator Balfour appeared to have been outside Georgia.

This woman still has a job?

Fox 5 Atlanta reports that the Executive Director of the Georgia State Ethics Government Transparency and Campaign Finance Commission is urging the Commission to reopen the books on bookkeeping charges against U.S. Senate candidate Karen Handel that were earlier settled.

To me, the most shocking part of this story and other recent stories is that Ethics Commission staff attorney Elisabeth Murray-Obertein is still employed after she has given interviews to the media complaining about her boss, Commission Executive Director Holly LaBerge, stating “I have wasted taxpayer over hundreds of hours” and challenging LaBerge’s performance of her job.

Murray-Obertein has even gone so far as to file a complaint with the State Bar, alleging that LaBerge had the temerity to do the job she was appointed to perform.

My complaint is not that Murray-Obertein is a whistle-blower alleging wrongdoing. It’s the fact that she’s giving media interviews that call into question her immediate supervisor and the Commission for which she works.

Senator Josh McKoon cleared

The office of Attorney General Sam Olens found no crime was committed by Senator Josh McKoon after allegations that McKoon allegedly threatened the withholding of some state funds from a local school district.

At issue were questions McKoon raised about an exclusive contract the Muscogee County School Board had with a local law firm and whether the school board was overpaying. The Senate Ethics Committee previously found no wrongdoing by McKoon.

Personally, I think McKoon should be commended for questioning whether his local school board was acting irresponsibly and whether they can be entrusted with state dollars.

Cherokee Ethics Panel to meet

Wednesday at 6 PM, the Cherokee County Board of Education will hold a hearing to discuss whether Board Member Kelly Marlow violated the board’s ethics policy when she wrote a letter to the regional school accrediting agency raising questions about whether the Board violated its own policies.

The hearing in the School Board Auditorium is limited to 100 members of the public who must follow a strict code of conduct to ensure fairness, but a live broadcast will also take place at the Cherokee High School auditorium and admission is only limited to the auditorium capacity of 1,050 people.
Doors will open at 5:30 p.m. and the hearing will begin at 6 p.m. for both the hearing at the historic Canton High School Board Auditorium and the live broadcast at the Cherokee High School auditorium.

“What the board is going to determine, is if Ms. Marlow’s actions were a violation of the code of ethics,” Jacoby said Friday. “If they decide that (Marlow’s actions) were a violation, then they can issue a sanction. If they decide there was not a violation, then they would probably decide there is not a sanction.”
In July, Marlow joined the board in a unanimous vote to hold the ethics hearing, and in August AdvancEd found the district was not in violation of the agency’s standards and/or policies.
Read cited two specific policies, when the board voted to hold the hearing, which Marlow may have violated by sending the letter to AdvancEd.
The two policy violations that will be discussed at the hearing come from the School Board Code of Ethics, in the area of “Board Ethics.”
The policies state school board members should, “Recognize that the authority of the board rests only with the board as a whole and not with individual board members and act accordingly,” and, “Take no private action that will compromise the board or school system administration.”
If the school board determines that Marlow has violated the board’s code of ethics, Jacoby said it would be “up to the school board to determine what that sanction would be.”

I have come to reconsider my position on this issue. While I make no finding as to whether Marlow’s conduct qualifies as “bat-sh*t crazy,” I am concerned about any group of elected officials having the ability to censure one of their members for reporting allegations of wrongdoing. Any elected official who believes they have a reasonable basis to believe that their agency has committed offenses should have a duty to report their allegations, and the board should have no means of muzzling them.

Whistleblowers can be annoying and they can harm the interests of the taxpayers if they become repeatedly file claims without merit, but the interests of taxpayers in good, open and fair government rely on them. There’s a reason that whistleblower statutes are in place.

I recognize that it’s hard to be consistent with respect the the whistleblowers in the above cases and that I may not be entirely consistent. Here’s part of how I reconcile the contraditions.

With respect to government employees, they must recognize that not every decision with which they disagree is an issue that requires a lawsuit, state bar complaint, or running to the media. Elected and appointed officials have a direct mandate from the voters and our structure of government to make the decisions required for the running of government. Unless their decisions violate the law or are subject a conflict of interest, employees should respect those decisions.

Elected officials also have a duty to report or attempt to prevent wrongful acts by the bodies to which they are elected.

Ultimately the question of whether a whistleblower should be protected comes down to the reasonableness of their complaint and the position held by the complainant. Elected officials have more latitude in raising issues because they have a greater duty directly to the voters and taxpayers. With employee complaints, that latitude is reduced because they are neither elected nor appointed by someone who is elected.

The best way I can explain the difference is with this clip from “Absence of Malice.” I apologize for the video and sound quality.