Newspaper Page Text
—Conflict—
Continued from page 6.
does not serve the interests of polit
ical, racial, religious or even eco
nomic minorities that states are
sworn to protect.
Should a private group
subsidize state litigation?
The choice of Wendell Bird
and two other creationist attorneys
was clearly a value judgment for
Attorney General Guste. But per
mitting the CSDLF to pay their
salaries plus the state’s expenses is
not only unprecedented, it may be
unethical and illegal under Louisi
ana law.
First the question of precedent.
There have been numerous cases of
interest groups “intervening” or
joiningagovernmental lawsuit and
even carrying the bulk of the work
burden. The thin red line in such
cases is that the interest group’s
attorney remains technically inde
pendent of the government unit. In
this case, the creationist attorney is
the government’s attorney. There
fore CSLDF paying all Bird’s ex
penses while on state business
amounts to subsidizing the state.
“I never heard of such a thing,”
said Bob Getzel, an aide to Pen
nsylvania Attorney General Leroy
Zimmerman. “We’ve had some cases
where private groups have provided
full cooperation—but nothing like
paying expenses.” Similar aston
ishment was voiced by the attorney
general offices in Maryland, Illi
nois and Arkansas.
Precedent or not, the arrange
ment allows a state official to receive
a salary from a private group for
his state hours. To this, Rusty
Jabour, Guste’s information officer,
argues passionately, “Attorney
General Guste stresses that Wen
dell Bird is not and has never been
an employee of this office. He is
designated the Special Assistant
Attorney General for the purposes
of this case, but he is not—is not —
an employee subject to the rules of
conduct of this office."
The arbiter of such questions in
Louisiana is the Louisiana Ethics
Administration, a government
review panel with the power to
hold hearings, levy fines and even
recover moneys obtained under “im
properly influenced situations.” The
specific question of Wendell Bird
was put to Ethics Administration
staff attorney Peter Wright who
made clear that he could not form
a conclusion without an investiga
tion, but would nonetheless pro
vide relevant insights into Louisi
ana law and ethics.
“Title 42 defines a state employee
quite broadly,” explains Wright.
Quoting from the law, Wright
specified that: “The law declares:
‘Public employee means anyone,
whether compensated or not, who
is...engaged in the performance of
a governmental function. This
covers anyone participating in
government policy decision.
Prosecuting a case is a governmen
tal function, whether or not it is in
a paid or volunteer status.
Continuing in his description of
Louisiana law, Wright declared,
“Once you conclude that a person
is a public employee, you go to
Title 42, section 1111A, entitled
‘Payments For Services’ and that
declares: ‘No public servant shall
receive anything of economic value,
other than compensation and ben
efits from the governmental entity.-
..for the performance of the duties
and responsibilities of his office or
position.’ Only the state can
determine compensation. If the state
has determined compensation will
be zero, than no one can supple
ment it.”
Separating fees for Bird’s time
‘The whole point of the
ethics code is that when
a person is performing a
governmental function,
he is to serve only one
interest and that is the
state interest. The
purpose of the law is to
protect the
independence of public
servants from not only
the actuality but the
appearance that their
service may be colored
or improperly influenced
by any outside interests.’
Peter Wright
from actual expenses such as travel,
telephone and xeroxing brought in
a range of other issues. Travel con
stitutes a special category of ex
pense. When told that the CSDLF
was paying travel expenses for Bird
and two other creationist lawyers
on the state’s team, Wright flatly
asserted, “State employees must
travel at state expense and cannot
be reimbursed or compensated by
a third party.”
When asked if Guste himself
would be held in violation for
agreeing to Bill Keith’s proposal,
Wright would not answer directly.
Instead, he merely cited the case of
several Louisiana State University
coaches who traveled to Germany
to inspect track facilities at the
expense of potential track suppli
ers. “The Ethics Administration
ruled their actions were improper.
Their defense that the travel was
specifically authorized by their
athletic director was rejected, and
the athletic director himself was
also found to be in violations.”
Asked whether the Bird-CSDLF
arrangement violated Louisiana
law, Wright would only reply, “I
think it is pretty clear. That is all
the comment I would like to make.”
A conflict of interest
Perhaps no issue is more com
pelling than the question of whose
interest Wendell Bird is serving if
he is both the lead counsel of
CSDLF and a special assistant
attorney general being paid for his
state hours by CSDLF. “It reveals
precisely what this litigation is
about—a private religious group’s
effort to enlist the state in a reli
gious crusade,” asserts Marc Stern
of the American Jewish
Congress.
Peter Wright offered this answer:
“The whole point of the ethics code
is that when a person is performing
a governmental function, he is to
serve only one interest and that is
the state interest. The purpose of
the law is to protect the independ
ence of public servants from not
only the actuality but the appear
ance that their service may be
colored or improperly influenced
by any outside interests.”
In that regard, perhaps the most
telling comment came from one of
Guste’s staff attorneys working on
the case. Asked whether Bird was
serving the interest of the state of
Louisiana or the Creation Science
movement, she answered, “I don’t
know.” After a pause she added, “I
guess they are the same.”
© 1986 Feature Group Inc
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PAGE 7 THE SOUTHERN ISRAELITE June 6, 1986