Ethics panel changes course on probe

Staff writer Bill Rankin contributed to this article.


AJC WATCHDOG

As part of our work to hold government officials accountable to the public, The Atlanta Journal-Constitution has closely followed activities at the state ethics commission. Recent stories have reported accusations that the executive secretary of the commission improperly intervened in a case involving Gov. Nathan Deal. On Sept. 30, the commission voted to seek an independent probe of the agency. Our Tuesday story reported how the commission still hadn’t formally requested the probe, causing some observers to say that the slow pace of progress could cause the public to lose confidence in the agency. Today, we look at the commission’s formal request in which the probe will not be conducted by an investigator appointed by the attorney general as originally expected.

The state ethics commission on Tuesday changed course and asked the state auditor to conduct an internal investigation of the agency.

The commission voted Sept. 30 to ask Attorney General Sam Olens to appoint a special outside investigator, but it never sent Olens the formal request. On Monday, after The Atlanta Journal-Constitution asked why that hadn’t happened, the commission said it was still vetting candidates and “determining the scope and nature of the investigation.”

On Tuesday, the panel, formally known as the Government Transparency and Campaign Finance Commission, said it would instead turn to the state Department of Audits and Accounts. Ethics watchdogs and Democrats questioned the move, specifically the fact that the current state auditor was appointed by Gov. Nathan Deal, whose administration is at the center of the commission’s current saga.

The commission voted to seek an independent probe after the AJC reported that current and former commission employees have said in sworn testimony that the commission’s executive director had improperly intervened in a case involving Deal. Those accusations raised concerns about the independence of the commission charged with holding officials accountable.

Commission Chairman Kevin Abernethy told the AJC the state auditor “has agreed to conduct an internal investigation and performance audit of the agency.”

Under state law, the auditor may launch a full investigation when there are records, circumstances or information that indicate a state agency or state official has engaged in “mismanagement or misconduct.”

Abernethy said the panel did not vote to change its intentions and declined to comment further.

The commission has fallen under scrutiny since the AJC’s report of the accusations that executive director Holly LaBerge ordered documents removed from the case file of the commission’s investigation into Deal’s 2010 campaign for governor. Current and former employees of the commission also testified that LaBerge bragged that Deal “owed” her for scuttling the case against him.

The governor has said he received no special treatment in the handling of the case and criticized the AJC’s coverage. LaBerge has testified that she did not interfere in the investigation.

Deal, who was accused of misusing campaign cash and accepting contributions over the legal limit, was cleared of major charges in 2012 and ordered to pay $3,350 in administrative fees for “technical defects.” The commission’s staff attorney had recommended a fine of $70,000.

The state auditor reports to the General Assembly and, typically, is hired by the Legislature. But current auditor Greg Griffin was appointed by Deal in June 2012 when Russell Hinton retired from the post while lawmakers were out of session. The General Assembly confirmed Griffin’s appointment this year.

The decision to use the state auditor, rather than an outside investigator, surprised Ken Gross, a national expert on ethics law and former associate general counsel of the Federal Election Commission.

“If there are allegations of financial improprieties, it seems to me the state auditor would be the appropriate place to reconstruct where things occurred,” said Gross, now head of the political law practice at the Washington firm Skadden, Arps, Slate, Meagher & Flom. “But if the allegations of misconduct go beyond allegations concerning money, such as some kind of misconduct, then it would be more appropriate to have a state’s attorney conduct such an investigation. The line of questioning, the line of inquiry would go beyond review of records and financial transactions.”

Georgia Democrats were more blunt.

“The state ethics commission’s rationale on the change is a laughable excuse,” said state Sen. Horacena Tate, D-Atlanta. “The state auditor is an accountant. This is not a financial accounting error. The investigation is about the possibility of deleting files, assisting in a cover-up and obstructing the honest process of government.”

But state Sen. Josh McKoon, R-Columbus, who has led efforts to toughen state ethics laws, said Griffin is quite competent.

If Griffin “is tasked with conducting a performance review, you can definitely expect he’s going to be thorough and he’s going to conduct that review independent of any kind of bias,” said McKoon, who has met with Griffin before. “I would have a high degree of confidence in what he does.”

But McKoon added: “The question is, if and when he comes back with some actionable information, then what happens? I would be curious to know the answer to that question.”

William Perry, executive director of Common Cause Georgia, said the commission won’t be able to limit the parameters of the investigation and will no longer have to foot the bill for an outside investigator. Those are good things, he said.

While Perry said he had no reason to doubt Griffin’s abilities, he was appointed by Deal and has no “authority to terminate or remove anyone from office.”

Perry wanted Olens to appoint a prominent outside attorney, someone who “garners public trust.”

“No one questions their ability to do it or have political pressure put upon them versus someone who is a state employee appointed by Governor Deal,” he said.

Under Georgia law, the state Attorney General’s Office can investigate state agencies and entities that do business with the state. A special assistant attorney general would have the power to subpoena witnesses to give a statement or produce documents. If a witness refuses to cooperate, the special assistant could then call the witness into court to face possible contempt charges.

If any indication of criminal wrongdoing is found, the special assistant attorney general could then ask a grand jury to consider an indictment. This would typically be done in consultation with and the approval of the Attorney General’s Office.

The Department of Audits and Accounts has similar powers, although it would not be able to prosecute suspected criminal wrongdoing. Under state law, the agency can procure evidence, conduct hearings, compel testimony from sworn witnesses and look at confidential information held by a state agency. If a witness fails to respond to a summons, the agency can go before a Superior Court judge to obtain an order commanding that witness to come forward.