Ethics debate splits State Election Board

By Rhonda Cook and Aaron Gould Sheinin

The Atlanta Journal-Constitution

A fight is brewing among state election officials over whether the person who chairs the State Election Board should be allowed to make decisions about an election in which she is a candidate.

It's a battle that could reach a head at Monday's election board meeting when two powerful Republicans face off over two ethics proposals -- one by Secretary of State Karen Handel and the other by board member Randy Evans, the state GOP general counsel for years.

The issue is important as the State Election Board has great power to investigate alleged violations of primary and general election laws and to decide how names appear on the ballot, which has the potential to sway how people vote.

One plan promoted by Evans, the state Republican Party’s appointee to the board, would not allow any board member who is also a candidate to participate in any discussion or vote that could affect his or her election.

Handel, a Republican candidate for governor, plans to propose her own version, which does not include that restriction. Her version, however, would force Evans to recuse himself from cases in which his law firm, McKenna Long, is involved.

Evans said it was already his practice to recuse himself when matters involving the firm come before the board. Evans said he supports the secretary of state's version even though it does not address the issue of Handel weighing in on matters or rule changes that could affect a political race that involves her.

“We were getting a number of concerns by candidates and voters of the integrity of the process,” Evans said. “In a hotly debated gubernatorial contest, the best way to [protect the board’s integrity] is to take away any appearances of impropriety. A candidate on a ballot should not be involved in the process."

“There is a genuine concern that calls into question the integrity of the process," Evans said. “It’s bad she’s participating and changing the rules in an election where she is a participant. ... It’s about adopting some procedures so voters can have confidence in the process.”

This has been an issue before.

When Republican board members raised the same concern before the 2006 election, then-Secretary of State Cathy Cox, who was running for the Democratic gubernatorial nomination, stopped attending meetings and the panel elected its first vice chairman to preside in her place.

But Handel argues that every member of the board has the same potential conflict of interest. One member is appointed by the GOP. Another is named by the state Democratic Party. The speaker of the House and the lieutenant governor each get an appointment. All are political entities. If she has a conflict of interest, Handel said, wouldn't the GOP or Democratic appointee also have a conflict in a general election fight between the two parties?

"So, inherently, across every single one of them that logic would have to apply," Handel said in an interview Friday.

A hypothetical scenario could involve one of Handel's opponents in the race for governor being accused of violating state election law. The case comes before Handel and the rest of the election board. What does she do?

The decision, she said, is easy.

"I don't need a piece of paper to tell me what is ethical or isn't ethical," she said. "I would obviously recuse myself."

Evans' efforts have gained the support of several other candidates running for governor.

"Secretary Handel faces an important decision with this issue,” said state Insurance Commissioner John Oxendine, who is also seeking the Republican gubernatorial nomination. “Will she accept language which allows for the highest level of integrity in the voting process as proposed by Mr. Evans or will she insist on a process which makes the voting process in Georgia about as credible as [the one in] Iran?”

Attorney General Thurbert Baker, a Democratic gubernatorial hopeful, said, "Avoiding conflicts of interest or the appearance of conflict is a critical part of ethics in government" and board members should do all they can to ensure their decisions cannot be challenged.

Republican Eric Johnson, who is also running for governor, agreed with Oxendine and Baker.

"I think it makes perfect sense," Johnson said. "I certainly trust the secretary of state, but when rules and regulations and laws are passed you have to assume the worst. I don't think anybody should kill anybody, but we made murder a crime. It makes sense that you would prevent an elected official from making decisions that might help their candidacy or hurt somebody else's."

When Johnson announced his candidacy for governor, the press release listed Evans as being the campaign's co-counsel. Handel's campaign says that's why Evans is trying to limit Handel's power: to try and help Johnson by hurting Handel. But Evans has said he has not endorsed any candidate and has told Johnson as much.

The issue arose after the Aug. 12 meeting. It was at that meeting that the board discussed a proposed rule change concerning how names appear on ballots. The idea was to prevent candidates from using nicknames that could potentially sway voters unfairly, such as John "Tax-cutter" Smith. Some of Handel's opponents, however, began to question whether Handel should have the ability to influence how candidates' names appear on a ballot if her name is among them.

Evans and board Vice Chairman Tex McIver to ask that a discussion of ethics guidelines be put on the agenda for the Aug. 27 meeting because of calls from some of the campaigns.

It was not. But the subject was still raised at the end of the meeting when Evans insisted.

“How dare you even remotely try to go down that path,” Handel said in response to Evans' suggestion of ethics rules, according to a transcript.

“We can present the issue. You can vote ‘no ’ to enhance ethics,” Evans said. “There is genuine concern about whether or not folks whose names appear on the ballot should participate in the rules regarding the ballot.”

Handel said in the meeting that the guidelines Evans suggested would prevent her from running for another office while still secretary of state. It also would prevent a secretary of state from running for re-election, Handel argued.

She also said Evans' proposed code would stop her from carrying out her duties now, including presiding over the State Election Board. Those duties are prescribed in state law.

“No matter how esteemed … intelligent or legally astute all of you may be,” Handel said, the other board members cannot “dampen or limit my constitutional” responsibilities as secretary of state.

Only the Legislature can do that, she said. Any ethics policy the board adopted would simply be guidelines and wouldn't be legally enforced. She said in the interview, however, that she plans to ask lawmakers to amend state law to include her proposed ethics plan for the State Election Board.

McIver declined to comment on the disagreement. But according to the transcript, McIver said he would prefer to have a code of ethics that provided specific dos and don’ts.

“It's just good basic guidance for us. There are many temptations out there ... Each of us need to understand what those rules are,” McIver said.

David Worley, the only Democrat on the five-person board, said he doesn’t know of any problems with board members but “it certainly would be helpful to have specific rules relating to the members of the State Election Board.”