CONFLICT LAW CALLED `FLAWED' WHAT OFFICIALS DON'T KNOW CAN'T HURT THEM

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SUNDAY, March 21, 1993                   TAG: 9303210043
SECTION: VIRGINIA                    PAGE: D1   EDITION: METRO 
SOURCE: DAVID M. POOLE STAFF WRITER
DATELINE:                                 LENGTH: Medium
CONFLICT LAW CALLED `FLAWED' WHAT OFFICIALS DON'T KNOW CAN'T HURT THEM<
Ignorance of the law is no defense unless you are an elected official with a conflict of interest.
In Virginia, a local official cannot be found guilty under the state's conflict law unless prosecutors can prove the official knew he was breaking the law.
The statute makes it difficult to prosecute conflict cases because public officials can defend themselves simply by claiming they were not versed in the law.
"It's an exception to the general rule that ignorance of the law is no defense," said Roger Groot, a law professor at Washington and Lee University.
Salem Mayor Jim Taliaferro pleaded ignorant last November of a possible conflict in a city land swap two years ago.
The Virginia State Police are investigating Taliaferro's role in Salem's decision to trade land with two businesses located next to the new Moyer sports complex.
The Roanoke Times & World-News reported last year that Taliaferro voted for the deal even though he knew it probably would benefit his construction company. Both businesses involved in the swap hired Taliaferro to build offices when they relocated.
When asked about his vote, Taliaferro said he was unfamiliar with the specifics of the state conflict law, which requires elected officials to abstain on any issue that may result in a "reasonably foreseeable" benefit.
"If I had thought for a moment I had something that was a conflict, I would not have voted," said Taliaferro, Salem's mayor of 21 years.
It is unclear what effect, if any, Taliaferro's professed ignorance of the law will have on the state police investigation.
Lynchburg Commonwealth's Attorney William Petty has been named special prosecutor in the case. Petty has declined comment until the investigation is completed.
Some public officials with conflicts have avoided criminal prosecution by claiming ignorance of the state's conflict law.
Last year, prosecutors found that Roanoke Fire Chief Rawleigh Quarles had a conflict when he allowed a fire truck manufacturer to sponsor his daughter in a beauty contest.
Quarles was not charged, however, because prosecutors had no evidence that the chief knew he was breaking the law.
The Virginia General Assembly added the so-called ignorance defense when it revised the state's conflict law in 1987.
The statute is a compromise between legislators who wanted to remove criminal sanctions for elected officials and those who wanted to retain them. The assembly kept the criminal penalties, but raised the standard of proof to a "knowing" violation.
House Majority Leader Richard Cranwell, who helped draft the law, said the language was inserted to avoid prosecuting those who unintentionally violate the law.
Cranwell, a Vinton lawyer, said the conflict law is no different from any criminal statute that requires the prosecution to prove an intent to violate the law.
However, Groot, the W&L law professor, said the conflict law carries a higher burden of proof than other criminal statutes.
In his textbook on criminal defense in Virginia, Groot writes that defendants charged under the conflict law can employ a "rare example of an ignorance-of-the-law defense."
Hampton Commonwealth's Attorney Chris Hutton says the law can make it difficult to prosecute a conflict case.
"The `knowing' element of the statute places a great burden on the prosecution that exists nowhere else in the code," said Hutton, who unsuccessfully prosecuted a member of Hampton City Council on conflict charges in 1991.
Julie Lapham, executive director of Common Cause of Virginia, argued that the legislature deliberately gave elected officials an escape hatch on ethical issues.
"They are going to make the burden of proof harder because they do not want themselves policed," Lapham said.
The state keeps no record of conflict convictions. But successful prosecutions are rare enough that a spokesman for Attorney General Steve Rosenthal could not cite a single, specific conviction since the law was revised.
Lapham said the conflict law is flawed because there is no procedure to ensure local elected officials understand their ethical responsibilities.
Local commonwealth's attorneys are required to give copies of the law to elected officials. But officials are not required to certify they have read and understand the law.
"What typically happens is they say, `I didn't know I was doing anything wrong,' " Laphan said.
"Our response is that there is no excuse. When people take the reins of being a public official, it should be their job to know what the law of the land is."

by Archana Subramaniam by CNB