‘Loser pays’ may be a price of ethics reform in Capitol

One price of an ethics bill in the Legislature, likely to included limits on gifts on lobbyists, may be a “loser pay” provision aimed at complaints merely intended to embarrass lawmakers or candidates.

During Monday’s joint meeting of the House and Senate ethics commissions, one of the most detailed proposals came from Atlanta attorney Doug Chalmers, who has strong GOP connections.

Read Chalmer’s entire proposal here. But focus on this portion:

(h) Authorize Commission to Award Attorneys Fees to Defendants in Cases Involving Frivolous Complaints.

All too frequently, complaints are filed against elected officials and lobbyists by individuals with a political agenda. In a number of these cases, the complaints are substantially frivolous, making allegations that are flatly inconsistent with the law or factual assertions that are demonstrably false from reports that are already on file with the Commission and publicly available. In many cases, the persons filing the complaints also do not bother to show up at the Ethics Commission hearing when their complaints are heard.

In other words, individuals are currently able to file frivolous complaints, require elected officials and lobbyists to incur costs to defend them, not bother to show up at the hearing to support or defend their allegations, and they are able to do this with impunity and without fear of consequences.

The Act should be revised to authorize the Commission to require payment of
defendants’ attorneys fees against anyone filing a complaint when either of the following is true:

(a) the complaint is deemed by the Commission to be frivolous, either factually or legally, or (b) the complaining party fails, without good cause, to show up for the preliminary hearing on the complaint. A provision like this promotes equity, because it gives the responding party an opportunity to confront his or her accuser, and to recoup his costs if a complaint is frivolous.

We’ve found at least one supporter of this idea on Democratic side. In an interview this morning, state Rep. Mary Margaret Oliver (D-Decatur), who sits on the House Ethics Committee, says she would have no problem with that:

“I support attorney fees for frivolous complaints. There’s this little industry out there — ‘gotcha’ complainers. I think those people are not a helpful part of the political dialogue. I’m aware that there’s an element of politics that’s a pretty dangerous crowd. Seriously dangerous people. Some of them are mentally ill.

“Have you read the blogs? There’s a negativity and a hate-mongering that’s frightening to me.”

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16 comments Add your comment

Been Around-Done That!

January 26th, 2010
10:58 am

Who determines if “complainmts are frivolous? Some lawyer on the bench wearing a robe? Just another way to gag citizens and protect politicians. Too many lawyers holding office. It is time to replace them with ordinary folks who have no agenda that will fill their personal pockets or enrich their campaign contributers. And “no”…I am not a Democrat. I am a conservative Republican who has had enough!

Aaron Burr V. Mexico

January 26th, 2010
10:58 am

That’s fine…so long as if the represenative loses, then they are required to pay and they forfeit their bankruptcy protection and if they do somehow get bankruptcy protection that those filing the complaint and WIN get first dibs over reclaimation of assets above any other financial institution.


January 26th, 2010
11:13 am

loser pays fine if approximate rates/ranges are reasonable/published. if ethic complaint prevails then legislator in addition to ethics fines needs to pay reasonable costs to other side too.


January 26th, 2010
11:20 am

The act, as quoted, sounds like a “loser pays” in only one direction.

If a losing defendant pays the attorney fees of the plaintiff, then we might be able to judge the merits of the case based on the quality of the lawyers on each side.


January 26th, 2010
11:48 am

A loser pays system in general is not a bad idea. However, it must be modified and capped so that a wealthy person cannot simply use money to deter any and all lawsuits, frivolous or not.


January 26th, 2010
12:15 pm

also must consider the ethics commission is not totally unbiased…not sure how to fix that


January 26th, 2010
12:46 pm

I’m a Democrat (more or less) and I like it.


January 26th, 2010
1:09 pm

Let’s include another clause for ethics complaints that are found to be frivolous during the initial complaint, but 6 months or years down the road, prove to be TRUE; like the ethics complaint against Glen Richardson. In this case, the attorney should be forced to return the money paid during the initial complaint; because any group dismissing a complaint as frivolous can be in cahoots with the defendant(s).

Pierce Randall

January 26th, 2010
1:18 pm

Hm. As a gesture, loser pays makes the legislature seem disingenuous on the subject of ethics reform–like, would we only agree to ethics reform if it had a loser pays provision? However, this specific provision isn’t that bad, if not abused.

My only fear is that we elect, and thus, at some level, inherently politicize judges in this state. So judges might have political allies, which might skew the playing field for ethical complaints.

I’m mildly against this provision, without knowing any more about it.


January 26th, 2010
2:34 pm

This legislation is fraught with ambiguity. My goodness gracious–when Bobby Kahn filed an ethics complaint against Glenn Richardson detailing his shenanigans with a female lobbyist and same lobbyist having legislation before the house at the same time; they called the complaint frivolous with no basis for the complaint. Should we have a clause in there ‘must be substantiated by ex-wife.” Everytime I think the state legislature is doing something worthwhile they do something like this. What a joke!


January 26th, 2010
2:35 pm

Sounds reasonable.


January 26th, 2010
3:56 pm

Right now a complainant has no right to conduct their own discovery. If their money is going to be on the line, then they should also get that right. As others have said, if this rule had been in place during the Richardson complaint, that complaint would have been deemed frivolous even though no one ever bothered to ever look into the allegations.

[...] Case in point from Her Highness: There’s this little industry out there — ‘gotcha’ complainers. I think those people are not a helpful part of the political dialogue. I’m aware that there’s an element of politics that’s a pretty dangerous crowd. Seriously dangerous people. Some of them are mentally ill. [...]


January 26th, 2010
7:53 pm

“Sam” is right. Investigations of complaints by the State Ethics Commission are pro forma at best, when not entirely notional. The Commission has always operated under the sway of its lawyer members. These people are exceeding quick at finding a “good reason” for a failure to register as a lobbyist by one of their fellow attorneys.

Why not add a provision to the Ethics law that prohibits any lawyer who serves as a member of the State Ethics Commission from representing anyone against whom a complaint has been filed before that body for a period of 5 to 10 years? A reporter would be rewarded by a study of the composition of what might be called the “State Ethics Commission Bar,” which has a significant population of former Commission members.

Has any lawyer ever been found to have violated the State Ethics Law by failing to register as a lobbyist? Has any lawyer ever worked as a lobbyist for or against legislation without registering as a lobbyist?

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