If Ethics in State Government Forces Senator Hillyard to Retire—So Be It!
by Alan Smith
Committee on Ethics Reform
State Sen. Lyle Hillyard, R-Logan, has threatened to resign from office if the ethics initiative sponsored by Utahns for Ethical Government becomes law.
The initiative, according to Hillyard, allows three complainants to charge him with an ethics violation, and then to subpoena any confidential record they want from his attorney-client files. Concerns for the privacy of his clients and the business of his firm apparently have overthrown his desire for continued service as a public official.
Hillyard’s concerns have no basis in fact, however. The initiative does not abolish the attorney-client privilege or any other safeguard to confidentiality. Nor does it give unlimited subpoena power to those who bring an ethics charge against a particular legislator.
Subpoenas “may” be issued by the executive director of the ethics commission, at the request of complainants, but only as the director may deem “necessary” to the disciplinary process. This determination of “necessity” is made independently by the commission through its executive director, and not by the complainants themselves.
The initiative’s procedure in this regard incorporates by reference the current statute which governs legislative subpoenas, Chapter 14 of Title 36 of the Utah Code, as well as Rule 45 of the Utah Rules of Civil Procedure, a statute and rule which have been on the books for decades. Both the statute and the rule provide for judicial protection where subpoenas may be issued in violation of an evidentiary privilege or the right to privacy.
Why, then, does Hillyard continue to distort the facts of our initiative and pretend that a subpoena will disrupt his law practice and force him from office? If he seriously feared subpoenas in furtherance of legislative investigations, he should have (but has not) asked for the abolition of the statute and rule in question long before now.
But Hillyard (who, as a lawyer, undoubtedly has quashed not a few subpoenas in his time) does not seriously fear subpoenas. He fears, instead, that subpoenas will be used seriously by a citizens commission to investigate allegations of ethical impropriety. He prefers, therefore, to keep the subpoena power with his friends in the Senate, friends who, because of their shared interest in dodging scrutiny, will never issue a subpoena that might lead to meaningful disclosures.
Indeed, if there has ever been real accountability through an ethics investigation in the Senate (notwithstanding recent reports of misconduct which clearly warrant an inquiry), it escapes memory.
The real question is who shall decide what information, in the event of an ethics complaint, is discoverable, by subpoena or otherwise. Shall we continue to allow the senators and representatives to be judges in their own causes, telling us what they will or won’t reveal about their involvement in a controversy over ethics? Or shall we have an independent decision-maker who, after listening to the arguments of those who seek discovery and the legislators opposing it, serves as a disinterested arbiter of that dispute?
Far from revealing a problem with our initiative, Hillyard’s “subpoena issue” underscores the need for an independent ethics commission.
Hillyard can’t deny the utility of subpoenas as a tool for transparency, since they commonly are used for the gathering of information. By legislative edict, every other officer and employee of state government is subject to investigation when accused of malfeasance in office. But these public officials aren’t making headlines by threatening to quit because of the contingency of a subpoena. Moreover, the Legislature has passed laws which require disclosures from ordinary citizens in numerous contexts. Hillyard and his colleagues, however, apparently believe that this type of law — which they have made for others — shouldn’t apply to legislators themselves.
This attitude — that legislators somehow are “special” and that their private needs should take precedence over the public interest — must be smashed. Legislators are elected to serve, and personal interests, accordingly, must bend to the common good as our first priority.
If they don’t keep these priorities straight, if they are not endowed with that spirit of selfless service which traditionally has filled those who view public office as a sacred trust, then by all means they should resign. Our state does not want for men and women of principle who will stand in their place.
Alan L. Smith is an attorney and a member of the executive committee of Utahns for Ethical Government.
