With the rising influence of legal advocacy organizations, like the ACLU, progressive politicians found that, even if they could not win at the ballot box they might still pull off victory through the courts.

And now, building on such court victories, and recent legislative changes, they have happened upon a new tactic to get conservatives dethroned: the ethics complaint. These now, apparently, can be based upon even the most recent developments in the political sphere, not just the accustomed standard ethical values for public officials. So,if you have already convinced a judge or federal circuit to overthrow the will of the voters and enact new law, calculate that new law also into ethical requirements. Even if there are alternate provisions agreed to by the official.

Here is what happened in Oregon when a county judge chose to not perform gay marriages but referred those to someone else on the bench.

Judge Vance Day should be ousted from job, in part for refusing to marry gays, commission says



A state commission recommended Monday that Marion County Circuit Judge Vance Day be ousted from his job for his refusal to marry same-sex couples and other ethical violations.

The Oregon Commission on Judicial Fitness and Disability made its rare recommendation to the Oregon Supreme Court in a 48-page report. The high court ultimately will decide whether to remove Day from the bench.
The nine-member commission -- which held a two-week hearing in November into Day's conduct -- concluded that he has undermined public trust in the judiciary and that he should no longer be allowed to work as a judge.

"Judge Day shows no outward sign of comprehending the extent or nature of his ethical violations," the commission wrote. "His misconduct is of such a nature as to impugn his honesty and integrity."

Day released a statement through a spokesman, saying he and his legal team are "disappointed" with the commission's findings.
"A quick review of the decision indicates that the Commission's 'finding of facts' are at odds with evidence presented at the hearing, and some have no evidentiary support at all," the statement read. "The opinion is especially troubling because it disregards Judge Day's First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court."
Among the commission's findings:
Day instructed his staff members to embark on a "discriminatory plan" by telling people that they would have to check the judge's schedule before he could perform a wedding, the commission said. The judge then told his staff to investigate if the couples were gay.
If so, staff members were to tell the couple that the judge was "unavailable" on the requested day and to call another judge, the commission said.
"Judge Day is a Christian whose firmly held religious beliefs include defining marriage as only between a man and a woman," the commission said in its decision.
The commission noted that those beliefs clash with U.S. District Judge Michael McShane's ruling in May 2014 overturning Oregon's ban on same-sex marriage.
Marion County Circuit Judge Cheryl Pellegrini told the commission that when she was appointed to the bench in 2014, Day invited her out to breakfast and told her he was opposed to her appointment because of her sexual orientation as a lesbian. Day, however, said he told Pellegrini that he was opposed because she had been a government lawyer. The commission found Pellegrini's account "to be more credible."
Beyond the issue of marriage or sexual orientation, the commission found that Day committed many other ethical missteps, including some "amounting to criminal behavior."
The commission said that Day intentionally deceived media and the public by saying he was being unfairly attacked by the commission because of his religious beliefs when in reality the commission had been investigating him for other concerns before discovering his refusal to marry same-sex couples.
"His misconduct is not isolated," the commission wrote. "It is frequent and extensive. ...(P)ossibly the most disturbing, Judge Day has engaged in a pattern of dishonesty. Although the goal of much of his disingenuousness appears to be covering up misconduct, some of this conduct seems to have other independent objectives."
The commission found that Day has little insight into "the boundaries required" for being a judge.
Read the commission's report here.

-- Aimee Green
agreen@oregonian.com

And now another public servant is facing challenges---for merely posting some opinions regarding efficient law enforcement on a private Facebook page. This time it is an ethical charge related to profiling, a method that law enforcement personnel undergo training in, to identify suspects more efficiently and actually save the public's money.


Four ethics complaints have been filed against a Washington County prosecutor who wrote a Facebook post earlier this month that appeared to support racial profiling.

The Oregon State Bar is investigating the complaints against Deputy District Attorney Zoe Smith, spokeswoman Kateri Walsh said. The association will look into several possible rule violations, including conduct prejudicial to the administration of justice, and intimidation and harassment, according to a letter from the state bar to Smith.

The bar complaints were filed by two citizens, one anonymous party and the Oregon Commission on Black Affairs with support from the Oregon Advocacy Commissions.

The commission urged the state bar to investigate Smith's statements, calling them "dangerous and unethical."

"We request that you reprimand this attorney, publicly, and require her to complete adequate training and reflection to satisfy the requirements of professional and ethical conduct," their letter said.
Collectively, the complaints expressed concerns that Smith is biased, makes judgments about people based on their skin color, and cannot be trusted to be fair. The public deserves more from its prosecutors, the complaints say.
Smith has until April 12 to respond.
"I'm fully cooperating with the Bar and am willing to speak personally with anyone who has any concerns about my work," she wrote in a statement to The Oregonian/OregonLive.
Smith, who joined the district attorney's office in September 2005, came under fire after she wrote this on her personal Facebook page:
"I keep reading about the anti-politically correct movement to support Trump. For the record, I'm on board. If you're looking for a terrorist, look at a young Muslim male. If you're looking for a gang shooter, look for a young black guy. If you're looking for a child molester or a mass shooter, look for a white guy. That's just common sense. I'm more concerned about the environment in which we live and economic equality for those who work. Tell me how you plan to fix that, Mr. Trump."
Her comments quickly caught the eye of area defense attorneys. News of her statements and the ethics complaints were first reported by the Portland Tribune.
Smith's comments shocked some defense attorneys because she has had a good reputation with them, they told The Oregonian/OregonLive. Smith on Thursday also said in a statement that "to be honest, every defense attorney I have ever worked with would likely vouch for my fair work and lack of bias."
But the complainants told the state bar they fear she can't be fair.
The anonymous complaint was sent under a pseudonym because the person feared retaliation from people who support Smith and the district attorney's office, the letter says. Walsh, the state bar spokeswoman, said the two other citizen complaints may have also been submitted anonymously. The state bar sent emails to addresses listed on their letters and the messages bounced back.
Those letters criticized her initial statements and the apology that followed and said the district attorney's office should have asked an outside investigator to look into Smith's conduct.
The Oregon Commission on Black Affairs, in its letter to the state bar, emphasized the amount of "discretionary power" prosecutors have within the justice system, including who gets charged and who doesn't.
"When race and religion consistently inform discretionary choices against people subject to the power of our criminal justice system, the system deprives those people of the most fundamental assurances of American justice: the presumption of innocence, and the promise of fair and unprejudiced treatment before the law," the complaint says.
James Manning Jr., commission chair, said Smith's comments raise questions about how she has made decisions involving people of color.


-- Rebecca Woolington
rwoolington@oregonian.com

503-294-4049; @rwoolington





What I think is remarkable is that in both of these cases the ethical criteria revolve around very recent changes. A public official who has been in the public eye for decades may be accustomed to standards he/she has known for years. But apparently an ethical complaint, possibly leading to removal of the employee or official, may be grounded in recent, innovative decisions. This makes the state's ethical commissions a valuable tool for political control.