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Dangerous legal misperceptions

Two Feb. 3 editorials of the St. Petersburg Times should cause muchapprehension. One argues that a public official should be judged on the facts, not on the law. A second accuses the Commission on Ethics of whitewashing a case and calls for an expansion of the commission's investigative powers on the theory that, "People who have nothing to hide should have nothing to fear." Both these propositions represent a dangerous misperception of this country's legal system and its guarantee of due process.

The editorial titled, A clear conflict . . ., deals with Hillsborough County Commissioner Jim Selvey. It suggests that the Ethics Commission "judge Selvey on the facts of the case, not on technicalities in the law." Once the law is ignored, what standards or guidelines does the commission use in assessing those facts? Should commissioners simply use their subjective sense of morality to judge Selvey? Should administrators ignore the law they are charged to administer? Should judges ignore the law in cases they hear?

Such a proposition is indefensible. Our country is founded on the rule of law, not rule by men. The Legislature makes the law, and others are given the authority to administer it - but not change it.

The commission is charged with the duty of interpreting and enforcing the ethics laws as contained in the Florida statutes; it does not sit as the arbiter of all moral conduct. If the Commission on Ethics does not stubbornly lead the way by requiring that its decisions be based on the law, how can it judge others who stand before the commission for not living up to that standard? Regardless of what outcome it

produces, the Selvey case, as well as all other cases that come before the Ethics Commission, will be judged according to the law as written, and not by subjective perceptions of right or wrong.

The second editorial, titled . . . and better ethics oversight, accuses the Ethics Commission of mishandling the case involving former Deputy Attorney General Jim York. It implies that the commission had "insufficient interest . . . because the commission identifies too closely with the attorney general's office." Although it purports to sort out "details" of the York case, the editorial misstates some facts and completely ignores others. The record clearly reflects that Tracy Schilling, the complainant, totally refused to cooperate with the commission's investigation. She refused to be interviewed by its investigators, ignored a subpoena for an interview and failed to attend the probable cause hearing.

A fair review of this matter demonstrates that all parties received equal treatment and careful consideration according to the law while preserving the integrity of the process. Schilling twice attempted to withdraw her complaint against York. Rather than displaying an "insufficient interest," the commission denied her requests because of the seriousness of her charges, believing that it was in the public interest to proceed with the investigation and issue a public report.

The commission conducted an exhaustive investigation including interviews with 58 people over a period of 12 months. There have been only two other cases in the commission's 15-year history on which so much investigative effort was expended.

The commission has the power and the duty to investigate and report on complaints against high-ranking state officers and employees. It is for this very reason that the people of the state of Florida mandated that the commission be "independent." The commission fulfilled its duty in the York case and handled that matter without bias or prejudice.

The second editorial further states that the commission's credibility would be improved "if it were allowed to investigate official actions without having to wait for a formal complaint to be filled." However, the Ethics Commission was conceived as an impartial panel to investigate and report on matters brought before it by the citizens of this state. Whether the commission's credibility would be improved if it were given the dual role of prosecutor and judge is under debate right now.

The editorial argues that, "People with nothing to hide should have nothing to fear." Given this line of reasoning, the protections of the Bill of Rights become meaningless. Why do we have the right to remain silent? Why are we protected from unreasonable searches and seizures? Even public officials and employees are entitled to a system of justice in which they are judged by an independent, impartial tribunal, not by their accuser. The editorial's dispatch of numerous rights and due process considerations is both short and swift.

The first editorial concludes by stating that the Ethics Commission "can do something about" the Selvey case. It will. The Ethics Commission has and will continue to take an active role in investigating questionable behavior by public officials and employees regardless of their status or position. Any citizen having questions about the ethical performance of a public official or employee should call (904) 488-7864 to find out how to file a complaint with the commission. Further, the commission has and will continue to encourage the Legislature to close any gaps in the code of ethics. In the meantime, the commission will continue to base its decisions upon the law as it is written, and not upon what we, or newspapers, think the law ought to be.

In conclusion, for a newspaper with a national reputation for advocating the rights and liberties of the individual to advance the propositions that Selvey should be judged on the "facts" rather than the law, and that people who have nothing to hide should have nothing to fear, is disillusioning - if not a frightening reversal of philosophy.

Our guest columnist is chairman of the Florida Commission on Ethics.

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