Barriers to Filing Ethics Complaints Against Virginia State Lawmakers
Part 1 of a series on Virginia's ethics laws concerns the difference between the General Assembly complaint process by law vs. in reality.
In an era of rampant corruption and malfeasance in government, it’s worth interrogating whatever formal processes still exist for citizens to complain about apparent violations of the law. Through multiple FOIA requests and communications with lawmakers, administrators, and former jurists, I’ve spent the last year trying to do just that in Virginia.
In this first installment of a series focused on enforcement of Virginia’s ethics laws, I’ll interrogate the arcane process by which citizens can complain about members of the Virginia General Assembly. As you’ll see, the process is hardly accessible to the public and — in comparison to the Office of the State Inspector General’s process — appears designed to discourage complaints in the first place.
The General Assembly Conflicts of Interest Act
The Virginia State and Local Government Conflict of Interests Act governs state and local government employees in Virginia, and the Office of the State Inspector General deals with waste, fraud, abuse, and audits within Executive Branch agencies.
The General Assembly Conflicts of Interest Act, however, comprises the meat of Virginia’s ethics laws that govern members of the General Assembly, and it establishes the skeleton of the process through which citizens can complain about alleged violations.
The Act prohibits a set of behavior that the public would consider unethical, if not corrupt, and it governs gifts, disclosures, and contracts. The Act also details a complaint process and establishes the Senate Ethics Advisory Panel and the House Ethics Advisory Panel.
The Complaint Process by Law
If a citizen of the Commonwealth has reason to believe a member of the General Assembly violated the General Assembly Conflicts of Interest Act, the Act provides a process through which they can file a complaint.
Specifically, Va. Code § 30-114 requires:
A. In response to the signed and sworn complaint of any citizen of the Commonwealth, which is subscribed by the maker as true under penalty of perjury, submitted to the Panel, the Panel shall inquire into any alleged violation of Articles 2 (§ 30-102 et seq.) through 5 (§ 30-109 et seq.) by any member of the respective house of the General Assembly in his current term or his immediate prior term. Complaints shall be filed with the Virginia Conflict of Interest and Ethics Advisory Council, which shall promptly (i) submit the complaint to the chairman of the appropriate Panel and (ii) forward a copy of the complaint to the legislator named in the complaint. The chairman shall promptly notify the Panel of the complaint. No complaint shall be filed with the Panel 60 or fewer days before a primary election or other nominating event or before a general election in which the cited legislator is running for office, and the Panel shall not accept or act on any complaint received during this period.
B. The Panel shall determine, during its preliminary investigation, whether the facts stated in the complaint taken as true are sufficient to show a violation of Articles 2 (§ 30-102 et seq.) through 5 (§ 30-109 et seq.). If the facts, as stated in the complaint, fail to give rise to such a violation, then the Panel shall dismiss the complaint. If the facts, as stated in the complaint, give rise to such a violation, then the Panel shall request that the complainant appear and testify under oath as to the complaint and the allegations therein. After hearing the testimony and reviewing any other evidence provided by the complainant, the Panel shall dismiss the complaint if the Panel fails to find by a preponderance of the evidence that such violation has occurred. If the Panel finds otherwise, it shall proceed with the inquiry.
C. If after such preliminary investigation, the Panel determines to proceed with an inquiry into the conduct of any legislator, the Panel (i) shall immediately notify in writing the individual who filed the complaint and the cited legislator as to the fact of the inquiry and the charges against the legislator and (ii) shall schedule one or more hearings on the matter. The legislator shall have the right to present evidence, cross-examine witnesses, face and examine the accuser, and be represented by counsel at any hearings. In its discretion, the Panel may grant the legislator any other rights or privileges not specifically enumerated in this subsection. Once the Panel has determined to proceed with an inquiry, its meetings and hearings shall be open to the public.
D. Once the Panel determines to proceed with an inquiry into the conduct of any legislator, the Panel shall complete its investigations and dispose of the matter as provided in § 30-116 notwithstanding the resignation of the legislator during the course of the Panel's proceedings.
I’ll cover Va. Code § 30-116 in the next installment of this series, “VA Ethics Panels: Where Complaints Against State Lawmakers Go to Die.”
The Complaint Process in Reality
If you’re used to reading the law, perhaps you can decipher the proper complaint process from the Code section above. But for the millions of citizens of the Commonwealth who aren’t lawyers and aren’t used to reading the law, multiple barriers to filing a complaint stand in the way.
Barrier #1: Lack of Public Information
According to the law, citizens must file their complaints with the Virginia Conflict of Interests and Ethics Advisory Council. Yet if you go to their website, you’ll find no information at all about filing complaints. Here’s what emerges if you search their site for the word “complaint”:
Barrier #2: What Should a Complaint Look Like?
Due to this lack of information, it’s not clear what format of complaint is required or what information should be included aside from factual allegations. There is, for example, no online form that can be completed then mailed or submitted electronically.
Barrier #3: “You may wish to seek the advice of a private attorney”
The law requires the complaint to be “signed and sworn” as true under penalty of perjury. In April, I asked the Executive Director of the Council, Stewart Petoe, if I needed an affidavit or to have a complaint notarized before submission. He replied, in part:
To answer your first question, as you have noted, Virginia Code section 30-114 (A) does not mention affidavits. It does require that the complaint be "signed and sworn," and that the sworn complaint be "subscribed by the maker as true under penalty of perjury." If you have questions as to how to properly comply with these requirements, you may wish to seek the advice of a private attorney.
Requiring the assistance of a private attorney to simply decipher the filing process is a comical, if sad and potentially costly, barrier to navigate.
Barrier #4: Lack of Anonymity
The complaint process requires by law that the complaint, once filed, be transmitted to the legislator who’s the subject of the complaint. There’s no anonymity for the citizen filing the complaint.
It should go without saying that this lack of anonymity discourages complaints, as political retaliation is one defining feature of the Virginia Way. Even more, the people who’d be most privy to ethical violations by lawmakers may be staffers, administrators, and other political operators close to them, some of whom can’t afford to risk their jobs or income in retaliation for complaining.
In contrast, Virginia’s Office of the State Inspector General offers an easily accessible Fraud, Waste and Abuse Complaint Form which also ensures the filer’s anonymity. Here’s the bipartisan history of this anonymous complaint system according to the State Inspector General’s Office:
In September 1992, as part of government reform initiatives to make Virginia state agencies run more efficiently and effectively, Governor Douglas Wilder wrote the first Executive Order to create the State Employee Fraud, Waste, and Abuse Hotline under the Department of State Internal Auditors. In June 2006, Governor Timothy Kaine issued Executive Order No. 12 to ensure employees of the Commonwealth continued to have the opportunity to anonymously report instances of fraud, waste, and abuse to the Hotline.
In October 2012, Governor Robert McDonnell signed Executive Order No. 52 to expand Hotline accessibility to citizens of the Commonwealth, renamed it the State Fraud, Waste, and Abuse Hotline and merged it with the newly established Office of the State Inspector General.
Barrier #5: Appearing before Tribunals
If a citizen somehow properly files a complaint, and either the Senate or House Ethics Advisory Panel finds the facts sufficient to move forward, the citizen then has to come before a tribunal and swear to such facts (despite already swearing under oath upon filing the complaint). If the appropriate Panel decides to continue moving forward, they’ll then schedule “one or more” hearings during which the “legislator shall have the right to present evidence, cross-examine witnesses, face and examine the accuser, and be represented by counsel.”
So, by filing what a citizen considers a legitimate complaint, they’re potentially signing up for multiple hearings during which they’ll be under oath and under penalty of perjury, and during which they may be confronted by a lawmaker (or, more likely, an expensive attorney representing the lawmaker).
Maybe Mr. Petoe was right: if a citizen has a legitimate complaint against a member of the General Assembly, it’s probably wise to obtain a lawyer before starting the existing complaint process. This reality of the process, however, reveals the nature of the current ethics regime in Virginia, a regime that discourages accountability in government by its structure and apparently by design.
In the next installment, I’ll discuss the shadowy Senate and House Ethics Advisory Panels and reveal what happened to complaints filed over the past decade.