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Public officials’ books may put them in ethical bind

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From the Summer 2003 issue of The News Media & The Law, page 19.

From the Summer 2003 issue of The News Media & The Law, page 19.

By Sara Thacker

Charles Moose had two choices. He could resign as Chief of Police of Montgomery County, a position he had held for four years, or publish his memoirs, including his involvement in the high-profile sniper shooting case in the Washington, D.C., area in October 2002.

After the Montgomery County Ethics Commission refused to grant Moose permission to write the book, he filed suit in federal court claiming that the decision constituted a violation of his First Amendment rights.

In its advisory opinion, the commission decided that the proposed book and a movie consultation position about the sniper shootings violated the county’s ethics rule against using the prestige of one’s public office for private gain.

“While the prestige of office prohibition directly proscribes an employee from intentionally misusing the influence of the employee’s position, a public employee also violates the prohibition against the use of prestige of office for private gain by accepting remuneration for any service directly and immediately related to that employee’s governmental activities,” the commission wrote in its opinion.

“It is not in the best interest of the County to allow its employees to ‘trade on’ their government activities for private gain in such a direct and immediate fashion. Such conduct leads citizens to question whether public employees are discharging their duties in the public interest or in furtherance of some private interest,” the commission wrote. “This diminishes citizens’ faith in their public servants and erodes their trust in County government. These principles are at the core of the prohibition against using the prestige of one’s office for private gain and neither the County Executive nor [Moose] has convinced the Commission that this situation is a good platform to begin waiving those principles.”

The commission did not accuse Moose of discharging his duties in a manner inconsistent with the public interest or intentionally trying to gain publicity as chief of police, but found that “[Montgomery] County’s best interests are not served if employees are jockeying for position in high-profile projects, anticipating the possibility of some larger return for their County service.”

However, as Paul McMasters, the First Amendment ombudsman with the Freedom Forum, reads the law, the Montgomery County ethics rule is designed more to prevent someone who sought “prestige” from profiting from it.

“No one could accuse Chief Moose of having sought this ‘prestige’ that came to him as a result of horrible crimes,” he said.

The Montgomery County ethics law, which was designed to protect against corruption, should not apply to writing a book, said Moose’s attorney, Ronald A. Karp.

“A prior restraint of a book is presumptively unconstitutional,” Karp said. “Whenever you have any rule that seeks to suppress a book, the court has looked at it with the highest level of scrutiny.”

Unless there are specific governmental needs, a blanket ban on writing that generates personal income seems unnecessarily broad, said Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression.

For example, in United States v. National Treasury Employees Union, the U.S. Supreme Court found that a broad federal law prohibiting government employees from accepting compensation for speeches or articles violates the First Amendment “when neither the subject of the speech or article nor the person or group paying for it has any connection with the employee’s official duties.

“Absent such a nexus, no corrupt bargain or even appearance of impropriety appears likely,” wrote the Court.

Unlike the government employees in that case, however, Moose was writing about his official duties.

The Court stressed that the speculative benefits the law provides cannot justify such a broad restriction on the First Amendment rights of federal employees.

Treasury Employees stands as a clear warning that such prophylactic rules are not necessarily valid in the absence of some documentation or citation of a specific recognized government interest,” O’Neil explained.

At a meeting before the ethics commission, Moose explained that while others may be writing about the sniper shooting, it was important that he tell this story from the perspective of a public law enforcement officer.

“I think the story of state and local and federal people working together, getting this done, forgetting the turf battles, doing this in a way that local government remaining in the lead, because we’ve got a terrible history about don’t call the FBI, don’t work with them, don’t let them into your shop, and we need to change all of that. Because the world has changed. And I think that we have an opportunity to tell the story in a different way, in a way that the law enforcement community will appreciate and will understand,” Moose said.

“It’s an important story to get out,” acknowledged Commissioner Steven A. Shaw at the meeting. “But if it’s important to Montgomery County, Montgomery County ought to be getting you to do it on what we’re paying you to do it.”

“Money is often used as an instrument of censorship,” McMasters said, “and in this case, if a person’s job is put on the line then it is very difficult for somebody to choose to express themselves if they know they are going to pay a penalty in the form of not being able to pay the mortgage on their house or the loan on their car.”

McMasters and other First Amendment advocates point to the U.S. Supreme Court decision more than 11 years ago that struck down a New York state law, known as the “Son of Sam” law, which restricted an accused or convicted criminal from gaining income from work that depicts the crime. Named after the New York serial killer David Berkowitz, otherwise known as “Son of Sam,” the law required that all money earned by accused or convicted criminals from expression of their crime be deposited in an escrow account for five years in case it was needed to settle claims brought by the victims of the crime and the criminal’s creditors.

In striking down the law, the Court, noting that the “Son of Sam” law applied only to speech activity and was therefore subject to strict scrutiny, found that “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”

The Montgomery County Ethics Commission distinguished Moose’s case from the “Son of Sam” case by noting that its law does not target speech.

The county rule at the center of the Moose case applied to all outside income, not to income from speech specifically.

“The County’s ethics law is neither content nor viewpoint based and the Commission is applying the law in a content neutral fashion,” the commission wrote in its advisory opinion.

However, content specificity or neutrality should not be the deciding factor, O’Neil explained.

“If New York can’t prevent a convicted felon from profiting from his writings, it seems somewhat perverse to say a police chief can’t write a book.”

High-profile public officials know that one day they may resign and write a book, explained Karp.

“Whether a person signs a book the day before or the day after he leaves office, what difference does it make . . . because he is still trading on the prestige of his office,” Karp said. “We found a long list of members of Congress and senators that have published books while public employees.”

Included in this list is Sen. Hillary Clinton (D-N.Y.), who recently released her book “Living History,” an account of her life and experience as First Lady.

Clinton signed the book deal before she entered office in January 2001 and reportedly received an $8 million advance from Simon & Schuster, a subsidiary of the media conglomerate Viacom, Inc.

When reports of Clinton’s book deal surfaced, Gary Ruskin, director of the Congressional Accountability Project, wrote a letter to Clinton requesting that she submit her book contract to the Senate Select Committee on Ethics to determine if it violated ethics rules.

According to the Senate Ethics Manual, such contracts “must be in accordance with usual and customary contractual terms governing the transfer of copyright, patent, or other intellectual property with established users or purchasers of those rights.”

“According to news accounts, your $8 million book advance appears to be the largest one ever received by an elected official in the history of the world,” wrote Ruskin to then Senator-elect Clinton.

Clinton’s book deal also threatened Senate rules prohibiting receipt of compensation that “would occur by virtue of influence improperly exerted from [her] position as a Member” or prohibiting professional activity, employment or outside business for compensation that “conflict[s] with the conscientious performance of official duties.”

“This isn’t a First Amendment issue, this is a corruption issue,” Ruskin said. “It’s important to note that as media conglomerates get larger and larger, this can easily be a way for conglomerates to put money in the pockets of elected officials.”

“Viacom has a vital interest in many legislative and regulatory matters pending before the U.S. Congress, the Federal Communications Commission and other executive branch agencies, including antitrust and ownership restrictions on media holdings and market concentration, intellectual property and copyright protection, regulation of media violence, campaign finance reform, tobacco advertising, alcohol advertising, and the public interest duties of broadcasters, among many others,” Ruskin wrote.

In spite of protest from the Congressional Accountability Project, the Senate Ethics Committee concluded that Clinton’s book passed ethical scrutiny.

According to Clinton, her book sold more than one million copies in the first month of publication.

Unlike the Senate, House rules prohibit elected representatives from receiving advances on copyright royalties.

The House revised its rules after then-House speaker Newt Gingrich was offered a $4.5 million book advance from HarperCollins, a publishing company owned by Rupert Murdoch. Giving way to political pressure, Gingrich reportedly accepted only $1 as an advance.

To settle his dispute with the Montgomery County Ethics Commission, Moose, who resigned as chief of police in June, agreed to voluntarily dismiss his lawsuit against the county and to give the county $4,250, the amount he was paid for movie rights for a limited period of time.

“In signing today’s settlement agreement, the Commission ends contentious and potentially disruptive litigation,” said the commission said in a statement.

As a result of the settlement, Moose is able to accept the reported $170,000 advance for his book “Three Weeks in October: The Manhunt for the Serial Sniper,” which is scheduled for release Sept. 15 and is already available for pre-order online.

The release of the book comes one month before the scheduled trial of sniper suspect John Allen Muhammad, whose trial was recently moved to Virginia Beach, Va.

Muhammad objected to the release of Moose’s book until after the trial is completed.

“Should this book be published and made available to the public on September 15, 2003, Muhammad will suffer irreparable harm in the nature of additional and predictably negative pre-trial publicity and a feeding frenzy conjured by Moose through press tours, television interviews and other publicity oriented endeavors to inspire sales of his book and to make money,” Muhammad argued in his complaint for injunctive relief, which he filed in Moose’s case against Montgomery County.

However, Moose’s attorneys failed to see the harm the book would cause. Moose’s attorneys argued that “given all the attendant publicity that has already surrounded — and will continue to surround — his impending criminal trial, including publication of other books and articles about the sniper investigation, Muhammad cannot demonstrate that publication of this book will somehow prejudice his right to a fair trial more so than the other publicity and publications.”

Because Moose settled his case and dismissed his First Amendment complaint against the county, the court dismissed Muhammad’s complaint as moot. Muhammad has yet to file a motion to restrain Moose from delaying the release of the book in his own criminal trial.