A Republican state senator’s campaign for government ethics reform now includes a proposal to give the Georgia attorney general authority to investigate public corruption.
Rather than embrace the bid for more power, Attorney General Sam Olens is keeping his distance from the measure—sponsored by Sen. Josh McKoon, R-Columbus—and local prosecutors aren’t sure it’s practical.
“The AG is not involved in the legislation and has not had any conversations with the sponsor,” Olens spokeswoman Lauren Kane said.
McKoon, a lawyer who heads the chamber’s Judiciary Committee, filed the resolution to allow the attorney general to convene statewide grand juries to investigate state and local government officials accused of ethics violations. The resolution, if passed, would trigger a referendum to add such authority under the state Constitution.
McKoon began beating the drum on ethics reform last session by pushing for a cap on lobbyists’ gifts to lawmakers. He gained backing from an alliance of Tea Party conservatives and open government advocates.
“A critical component that is not discussed much is who is the enforcer of ethical government; who is making sure public corruption is being vetted and prosecuted,” said McKoon. “Right now, we’re relying on a severely underfunded [ethics] commission, which can’t carry out that function, and to some degree we’re relying on internal House and Senate [ethics] committees. With all due respect, self-policing is not a good way to have an independent enforcement mechanism.”
Senate Resolution 6 would mandate that the AG’s grand juries, each with between 13 and 23 members, would have the power to investigate by subpoenaing witnesses and documents and to return indictments for crimes committed anywhere in the state. A jury’s term would be limited to 12 months.
Under the proposed constitutional amendment, the chief justice of the Georgia Supreme Court would designate a superior court judge to preside over the grand jury, and either the attorney general or his designee would act as legal adviser.
McKoon’s resolution is a facsimile of a House resolution filed in the 2009 session by then Rep. Austin Scott, who is now a Republican U.S. congressman from Tifton.
Scott’s proposal, House Resolution 75, failed to gain traction in the House and died in the House Judiciary Non-Civil Committee. Scott did not respond to requests for comment.
Prosecutors have raised concerns about Senate Resolution 6 that they initially voiced under Scott’s bill. The concerns aren’t about the resolution’s intent, said Douglas County District Attorney David McDade, who is head of the District Attorneys’ Association of Georgia. Rather, the concerns are about what happens post-indictment.
“Prosecutors will generally support efforts that make it easier to weed out corruption and prosecute corrupt officials. These certainly can be challenging cases, and so we need as many tools as we can get in that battle,” McDade said.
But DAs are worried that even if the attorney general secures indictment through a special grand jury, the local prosecutors would be responsible for the cases.
“The defendant is still entitled to be tried in the venue in which the crime occurred—generally their hometown,” said McDade. So, if prosecutors knew securing an indictment from a local jury pool would be hard, getting a conviction would be an even longer shot.
“An indictment carries a lower burden of proof,” he said. “So how would you expect to get a conviction from the same jury pool?”
McKoon said he has taken prosecutors’ concerns to heart. The proposed constitutional amendment “may need additional language about what happens following indictment,” he said. “My feeling is if the attorney general feels strongly enough to convene a grand jury to indict, then he would retain the ability to prosecute the case.”
Kane said the Law Department has not calculated how the office would absorb the authority if it were approved.
“At this time, we don’t have a detailed sense of how many additional resources would be required,” she said. “Obviously, it would require some additional resources.
“At the moment, our focus is on fulfilling our existing responsibilities in a very challenging budget environment,” she added.
Olens has been hesitant to advocate for more authority. When he drafted rewrites of the state’s open government laws and pushed them through the Legislature during the last session, Olens intentionally did not include a proposal pitched by First Amendment lawyers and government transparency advocates to create an ombudsman position within the Law Department to investigate violations and enforce compliance. Olens said he did not want to appear overreaching.
McKoon said he plans to speak with the attorney general and the Council of Superior Court Judges and already has had “limited conversations” with the DAs association.
“This [resolution] is very much a starting point,” he said. “I want to be deliberative. We’re talking about amending the Constitution. I expect changes as I get stakeholder input.”
There may be political reasons, too, for stakeholders to back away from the proposal. McKoon upset members of his own party when he proposed a $100 gift cap on lobbyists last year, which the Senate adopted in its rules this session. House Speaker David Ralston, R-Blue Ridge, derided the measure during a recent Georgia Chamber of Commerce legislative breakfast, calling it “more of a sun visor than a cap,” according to local media reports. Ralston, who is also a lawyer, has since announced his own legislation that would ban most lobbyist gift-giving and require more advocates to register with the state as lobbyists.
McKoon also sat on the Senate Ethics Committee when it heard allegations against former Senate Rules Committee Chairman Don Balfour, R-Snellville, last summer. Balfour maintained that improper requests he made for reimbursement for legislative expenses occurred due to accounting error rather than malfeasance. The committee ordered him to pay a fine and restitution.
McKoon then penned a minority report in which he argued that the attorney general should investigate Balfour for potential criminal wrongdoing. The Georgia Bureau of Investigation conducted a probe and turned over its findings to the Law Department. Olens has not said publicly whether his office intends to prosecute.
McKoon said he doesn’t know what the status of the Balfour case is.
“Without speaking to certain cases, I would suggest that the attorney general’s office would have an easier time handling allegations against a member of the General Assembly than the General Assembly would,” he said.
McKoon’s resolution has been sent to the Senate Judiciary Non-Civil Committee, which is chaired by Sen. Jesse Stone, R-Waynesboro, but has not been scheduled for a hearing.