Mr. Pealer noted the Supreme Court case, Caperton v. A.T. Massey Coal Co. (2009),
in which the Court ruled that due process required recusal when there is a serious risk
of actual bias or conflicts of interest. Establishing an ethics committee could create a
similar risk, where personal relationships and affiliations influence the
decision-making process, undermining the committee's credibility and impartiality.
Any committee established to enforce a code of ethics must not just actually be fair
and impartial it must also appear to be fair and impartial.
Mr. Pealer went on to state that the proposed Code of Ethics focuses on the lack of a
clause prohibiting retroactive application. He stated without such a clause prohibiting
the application of this code to conduct that which occurred prior to the adoption of
such a Code there was the risk of a person facing punishment Ex Post Facto. The
punishment could be any of the following: “an order to cease and desist the
violation, to pay a civil penalty of up to the maximum allowed per state law per
violation, censure, reprimand, suspension without pay, termination of employment
and/or removal from appointed office.” Additionally, the Commission may refer
violators to the proper authorities for further civil or criminal“ (Page 10 of the draft
ordinance).
Mr. Pealer pointed out that Article I, Section 10, Clause 1 of the U.S. Constitution,
One of the two Ex Post Facto Clauses, prohibited states (and by extension,
municipalities) from enacting laws that apply retroactively, thus criminalizing
conduct that was legal when originally performed. He stated that this clause ensures
that individuals have fair notice of the laws and consequences that govern their
actions. If a town were to create a Code of Ethics and apply it retroactively, it would
violate this constitutional prohibition by potentially punishing individuals for actions
that were not considered unethical at the time they were committed. He stated by
preventing such retroactive application, the clause safeguards individuals against
unjust legal changes that could undermine the principles of fairness and due process
in the legal system. He stated of critical note, that while there were some exceptions
to the Ex Post Facto Clauses they apply when the law is non-punitive, which the
proposed ordinance is not. (see Smith v. Doe (2003), Stogner v. California (2003),
Lynce v. Mathis (1997) and Miller v. Florida (1987)).
Mr. Pealer concluded his comments by stating that he was sure the supporters of the
Ethics proposal believe that it was going to produce a brighter future, the gleam of
those intentions can blind us to the perils of the dark path they may lead us on.
Therefore, it is crucial that they thoroughly evaluate the possible drawbacks and
challenges that come with adopting a new Code of Ethics. He stated that he strongly
encouraged the Town Council to consider alternative strategies that already exist to
deal with these concerns. He thanked the Administration Committee for their
attention to this matter; stating that he looked forward to the Town Council's
thoughtful deliberation on this important issue.
Mr. Kyle Dykes, 977 Shewville Road, Ledyard, stated that he is the Pastor of Gallup
Hill Baptist Church and that he has been a Ledyard resident for the past 11 years. He
stated that he was present this evening to provide comments on the impending
