After Judge Declares GRA Innocent, Ethics Commission Continues Harassment
Atlanta, GA — The State Ethics Commission held a special meeting Monday at the Coverdell Legislative Office Building to respond to Judge Dominic Capraro‘s July 14th ruling, which held that neither the GRA, Inc. nor the GRA-PAC did anything that violated statutory law for campaign contribution disclosures.
“The statutory definition excludes political action committees from the definition of independent committee,” wrote Judge Capraro. “Accordingly, as GRA PAC and GRA, Inc.—whether they are considered joint or separate entities—do not meet the definition of an independent committee, they cannot be considered to be in violation of Georgia Code Section 21-5-34(f), and no sanction is authorized.”
Judge Capraro had been appointed by the State Ethics Commission, and they had assigned to him their complaint against the GRA, Inc. and the GRA-PAC last December. Yet they refused to accept his decision. The members of the committee expressed their consternation with the outcome of the judge’s decision, even though they were not ready to decide on an exact contrary course of action or on a full explanation for such disagreement. Instead, they ultimately decided by unanimous vote to merely disagree with the judge before the 30-day window closed where the judge’s decision would, by default, stand and be final. They also said that they would hold another hearing on the case at their next regularly scheduled meeting in Helen, GA on September 9th before they decided what different course to take from what the judge had held.
The Ethics Commission expressed their desire that PACs be required to disclose the same kind of a detail that an independent committee is required to disclose. But Judge Capraro had observed that the statute expressly “excludes political action committees from the definition of independent committee.”
So the Ethics Commission made the unjust decision to judge the GRA by what they think the law ought to say rather than by what it actually says. The text of the statute is clear. The commission may genuinely want PACs to report their expenditures with the greater transparency requirements of an independent committee, but that is not what the law currently requires, so the commission’s contention is really with the text of the Georgia code, which can only be changed by the Georgia legislature.
Since the story broke of this complaint, the innuendo in newspapers has been that somehow the GRA-PAC was funneling “dark money” from the Frost family’s business First Liberty, and its alleged Ponzi scheme, to their PAC and/or to the GRA, Inc. However, the attorney for the Ethics Commission Timothy Baywal testified under oath before Judge Capraro that “It was never my position that they were trying to pump dark money into elections.”
Even so, the members of the State Ethics Commission last Monday expressed their concern that, if they agreed with Judge Capraro’s interpretation of the applicable statute, it would make it easier for PACs to potentially funnel ill-gotten funds (“dark money”) through the campaign contribution system. “[The state legislature] does not want dark money in the state of Georgia,” said one of the commissioners, “and it’s exactly what will happen if Judge Capraro’s decision is not reviewed by the commission.”
Attorney Catherine Bernard acknowledged their concerns, but said at the Monday hearing that the commission should raise that concern to the state legislature so that they could repair the statutory language. “Mr. Baywal was very clear, this is not a question of dark money or abuses of the system in any way. …
“And I do think that the possibility of the kind of abuse that you describe would be an excellent reason for the legislature to tighten up this particular restriction,” Bernard continued, “and perhaps even designate a hybrid entity that individuals or groups that are participating in both forms of this political speech and association could then participate in. Because again, we’re talking about dark money and important public policy considerations. But using the power of the Georgia government against volunteers who are speaking and associating within the political realm is a pretty dire fate as well.”
However, the commission failed to heed Bernard’s counsel. Seeming to argue that “the end justifies the means,” the commission chose to reject the judge’s reading of the statute so that they, as a non-elected bureaucracy, could effectively legislate by fiat to make the statute say what they wished it said.
There are several possibilities on where the Ethics Commission could go from here. For example, the commission could choose to continue to pursue the complaint against only the GRA-PAC, which was run by the Frost family independently of the GRA, Inc. This would be consistent with the arguments attorney Catherine Bernard has made in her defense of the membership organization, the GRA, Inc., since the GRA, Inc. had nothing to do with the Frost family’s administration of the GRA-PAC. Indeed, the GRA, Inc. and the PAC had separate articles of incorporation, separate government, and separate bank accounts the entire time the PAC was in operation. The PAC never gave money to the GRA, Inc.
Timothy Baywal acknowledged at the hearing that, in all his investigation of GRA records, he saw no evidence of GRA Inc. officers directing the GRA-PAC — no motions, no meeting minutes, no financial reporting, or financial decisions being made on the part of GRA Inc. for the direction of GRA-PAC funds.
Now if the State Ethics Commission decides in September to continue to pursue the complaint against the GRA, Inc., then the controversy can be appealed to a Superior Court Judge. “We will appeal,” said attorney Catherine Bernard. “They cannot simply ignore the statutory language.”
Understandably, many who saw the headlines about the commission overriding the decision of a judge asked, “How can an agency override a judge?” It’s a reasonable question.
The system for reviewing these kinds of charges is confusing. It involves administrative judges operating under bureaucratic Executive Branch agencies in state government, and undermines many aspects of the constitutional “due process” that has been a part of our American legal tradition for centuries. Whereas, constitutionally, it is the judicial branch that is supposed to be responsible for reviewing civil and criminal actions, the State Ethics Commission is an Executive Branch agency composed of three members appointed by the Governor and of two appointed by portions of the Legislative Branch. That violates separation of powers. It is effectively stealing subject matter jurisdiction away from the judicial branch. By removing cases from the judicial branch, they effectively circumvent the due process requirements such as “trial by jury” and “innocent until proven guilty.” Moreover, it adds additional unnecessary steps to the process and expensive legal costs for a defendant. It turns review of such complaints into a war of attrition. Those additional costs appear designed to force defendants to settle and accept false blame in order to avoid the expense of a prolonged legal battle.
As far-Left newspaper The AJC reported on the story: “In 2022, the commission overruled an administrative judge’s findings in the long-running case against former Insurance Commissioner John Oxendine. Oxendine later settled the case.”
The GRA-PAC has been terminated, and the membership organization is clearly not a PAC nor an independent committee, as Judge Capraro wisely confirmed, so the commission can have no genuine concern of ongoing harm in this case. The fact that they are relentlessly pursuing this complaint in spite of Judge Capraro’s decision reveals their true target: the GRA membership who are a thorn in the side of Atlanta politicians.
“The Commission continues to wage its campaign of lawfare against us in a clear attempt to intimidate us into silence,” said 1st Vice President Nick Cooper. “We weren’t joking when we said that we won’t back down and capitulate to the RINO Establishment. We will continue to stand up for our principles even in the face of these intimidation tactics.”
