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Last updated: Mon. Dec. 10, 2012 - 12:31 pm EDT

County brewing ethics redo

6 months after traffic stop, sentiment grows for change

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FORT WAYNE — With one early-morning phone call this past June, Allen County Councilman Paul Moss embroiled himself and Allen County Sheriff Ken Fries in a steep and highly publicized controversy.

What nobody knew at the time is that the scrutiny surrounding the two men’s actions that morning would last for nearly six months, and that it would test a 7-year-old county ethics policy as well as the three-member panel tasked with enforcing those ethics.

But now that the dust is settling on the saga of Moss and Fries – with neither man found to have done anything wrong during a traffic stop involving the councilman – an overhaul of the Allen County Ethics Policy is likely imminent.

What will the county’s revised ethics policy look like?

It might be too early for specifics, but those involved in the case of Moss and Fries – plus the man who created the original policy – want changes to clearly address who must adhere to the policy, how long the ethics commission can take to rule on matters and, more importantly, what punishments can be handed out when an ethics violation occurs.

Looking back at how the ethics commission handled the complaint filed against Moss and Fries, Allen County Commissioner Nelson Peters said he thought it “worked out fine, this time.” Peters created the ethics policy in 2005.

How it unfolded

The series of events started back on June 2, when an Allen County sheriff’s officer pulled over Moss’s black Cadillac near Dupont Road and Dupont Circle Drive at 2:31 a.m.

Inside the Cadillac, which smelled of alcohol, the officer found Moss behind the wheel driving a group of people appearing to be in their 20s.

Moss said he was giving the group, which included his adult daughter, a safe ride home from a bar. He told the officer he had not been drinking that night, but had some drinks at a golf outing the previous day.

Still, he refused a portable breath test and called a vacationing Sheriff Fries from his cellphone.

Fries spoke with the officer, and instead of having to take a more reliable breath test at the Allen County Jail, Moss was allowed to find a ride home.

News of the stop sparked some outrage from the public, with Fries and Moss issuing statements that no favors were asked and that none was given. Moss claimed he only called the sheriff to expedite the process of receiving a more reliable test. Fries said he told the officer at the scene to use his discretion on what to do.

Soon thereafter, a former county employee filed a complaint against both the councilman and sheriff with the Allen County Ethics Commission, a panel that up until now had heard matters related to possible conflicts of interest – mainly when financial and other gifts are given to county employees.

“Honestly, it was my expectation that the complaint would be dismissed outright without even being assessed by the commission,” said Philip Pease, the man who filed the complaint.

Pease, who was in the process of being terminated by the county when he resigned several years ago, said he filed the complaint to request more scrutiny of Moss’s traffic stop.

“Secondarily, it appeared a good litmus test for the overall effectiveness of the ethics code in general,” he added.

Pease wrote in his complaint that ethics were breached as soon as Fries interacted with officers at the scene because Moss oversees the sheriff’s budget and has a financial interest in not getting wrapped up in any criminal activity, which could harm his career and credibility.

Contrary to Pease’s expectations, the commission dismissed nothing. Instead, the then-three-member panel, which rarely met under the glare of the media, conducted a series of meetings in front of television cameras and reporters.

During one of these meetings, ex-panel member Tom Ryan, a former judge, walked out in protest and resigned.

During meetings Ryan bickered frequently with panel member Tom Hardin, a local attorney, claiming the commission’s investigation into Fries and Moss had become a “witch hunt.”

Judgment calls

What quickly became murky during many of these meetings, though, was what steps the eithics commission could take when reviewing complaints like the one levied against Fries and Moss, and who exactly is subject to the county’s ethics policy.

“I didn’t really expect something like this,” said Peters regarding his intention when he created the policy. “On a general basis, it was made to create greater transparency, to have officials held to a higher standard and be above reproach when it came to gratuitous gifts.”

Hardin, the only commission member to speak with the media throughout the process, said the panel had to make judgment calls on procedural issues.

For instance, he said, the current ethics policy does not mandate that those who are subject to a complaint respond to it in a certain number of days.

But Hardin and the panel voted to give them a month to respond in writing to the complaint.

“I just felt, for me, that was the appropriate response,” Hardin said. “I wanted them to make arguments on why the complaint shouldn’t go any further.”

Hardin said he would like the county commissioners to consider restructuring an ethics policy that has more defined terms and to strengthen exactly who is beholden to it, especially when it comes to elected officials.

In the case of Fries, the ethics commission ultimately dismissed him from answering to the panel because he is already under another code of ethics – the one developed by the Indiana Sheriffs’ Association.

And the current policy states that any elected official already under one code of ethics is not subject to the county’s ethics policy.

Pease said this is where the ethics policy failed, and called that part of the policy a “gaping maw of a loophole.”

Moss tried to argue that he also already adhered to a state ethics code because he’s an elected official and therefore exempt from the county ethics policy.

But the panel ruled that what Moss cited was part of state law and not a formal code of ethics, and did not override the county ethics policy.

‘Took too long’

Paul Moss submitted a written apology to the ethics commission Nov. 30 in which he indicated he was sorry if his phone call to Fries made any citizen question the integrity of government.

He admitted no wrongdoing, and as part of an agreement hashed out by attorneys for Moss and the commission, the complaint against the councilman was then dismissed.

Nearly six months after the traffic stop, the commission decided to make no ruling on whether Moss violated the ethics policy.

“As far as the process, it clearly took too long,” Moss said.

Moss said he would like to see the commission take into consideration the person filing a complaint, hinting that as a former county employee Pease might have had an axe to grind.

“I understand that might be a difficult thing to do, because that could discourage people from filing complaints who should,” he said.

For a few months, Moss said he kept from hiring legal representation and tried to go through the process himself. However, he incurred several thousand dollars’ worth of legal bills when he hired local attorney Tim Pape to represent him as the commission continued to meet and discuss the complaint.

Moss said he did so because he felt that Hardin – using his influence on the commission – was acting as prosecutor and judge in directing where the panel was heading in regards to the complaint.

“I needed legal representation just for that,” Moss said.

Late in the process, Moss became critical that Hardin was on the commission at all, saying that because Hardin did some attorney work for the county he had his own conflict of interest in the case.

Moss said he has routinely questioned how much the county pays attorneys, and that therefore his complaint shouldn’t have been partly decided by a county attorney.

Hardin said Moss and his attorney never brought up that issue until the eleventh hour, and dismissed any notion that he had a conflict of interest with Moss.

“I never knew he was a vocal opponent or a critic of (attorney pay),” Hardin said.

According to county records, Hardin is a salaried attorney for the county and represents the auditor, the clerk of courts, community corrections, the election board and information technology department.

Aside from some minor work he did on two assignments involving county council in 2006 and 2007, and a phone call he sat in on in 2010 for the council, he has no ties to the County Council, Hardin said.

Therefore, he said he refused to remove himself from any decision-making when Moss and Pape approached the commission about the possibility he had a conflict.

Punishment

But what if either Moss or Fries had been found to have violated the ethics policy?

What punishment could either man have faced?

That was also murky, and something Peters said will be fixed.

Throughout the months of meetings, it was never really said what sanctions Moss or Fries might face. There were talks of docking pay or some form of censure. But could that be done?

Even now, nobody really knows.

“It’s vague,” said Peters of the ordinance. “We want to give it some teeth. It needs to be clearer in … I don’t want to say punishment … but it needs to be clearer in what penalties there are.”

Despite the murkiness, after the ethics commission’s final meeting on the matter, Hardin said he felt the panel showed it does take complaints seriously.

But in absolving Moss, Pease, who filed the complaint, said that the ethics code, “at this point has been proven an empty and unenforceable shell despite its really great underpinnings and intentions.”

To Peters, it’s not a failure, but after the first of the year he said officials will look at the policy, and modifications will be coming so the process can run smoother.

jeffwiehe@jg.net


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