12 February 2008

Committee action, Feb. 12: HB 41

HB 41 would move judicial functions concerning ethics from the state’s Ethics Board to the Division of Administrative Law. Author Speaker Jim Tucker argued the process would improve enforcement by using administrative law judges for the actual adjudication and the Board would continue to make decisions about whether to prosecute, utilizing expert, impartial adjudicators which would not undermine the Board and bring more efficiency to the process.

Director of Administrative Law Ann Wise testified that the proposal mirrored procedures present in about half the state. She said administrative law judges are well trained in due process and the Administrative Procedures Act and that it cleared cases on average in less than two months.

Rep. Jane Smith asked how the judges would be chosen. Wise said the director chooses by case but usually randomly, although some have geographical constraints for efficiency sake. Responding to Rep. Mert Smiley, Wise said only minimal hiring would be needed to accommodate this bill at this time.

Rep. Karen Carter Peterson offered an amendment that would have only two-year experienced or more in administrative law lawyers handle such cases. Wise said it would reduce flexibility somewhat but slight adjustment to the amendment to allow 10 years experience in lieu. Peterson agreed and the amendment was adopted without objection.

Board executive counsel Richard Sherburne said he was coming to provide information but wanted deferral to allow time for the Board to comment, but House and Governmental Affairs Chairman Rick Gallot pointed out the bill would not be passed before the Thursday meeting of the Board. He argued due process he thought was well protected under the current arrangement, and that the collective nature of the decision-making was desirable.

Peterson pointed out that the Board was a Legislative creation, authorized its powers and members in part determined by it and that there would be greater independence by putting the enforcement function in the Division of Administrative Law whose employees were part of the civil service. She chastised him by saying the Board knew changes were coming and should already have considered these kinds of things and that no delay was necessary. Rep. Noble Ellington pleaded courtesy on the matter of moving the bill. Tucker promised he would not move the bill on the floor until after the meeting, and said there would be other testifying opportunities in other venues before it would go to the floor.

The Governor’s Executive Counsel Jimmy Faircloth pointed out that the governor had met with representatives of the Board and with his transition advisory boards where enforcement matters were discussed, so here was advance notice. Clarity, not internal fixes, was what the Administration wanted. Peterson moved reporting with her amendment, and it was done without objection

“Once you have the votes, sit down and shut up.”
Tucker, when Gallot asked whether he had any closing comments for HB 41.

THE GOOD: (similar to HB 16: SB 57; similar to SB 33: HB 65.)
THE BAD: HB 72 by Rep. Regina Barrow would allow for campaign funds to be used to purchase gifts for constituents up to $75. (Similar bill to SB 25: HB 85.)

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