The Limitations of the Language of "Influence"

Influence. It's a big word in a lot of government ethics laws, and a word that those who write such laws should think at least twice about.

As everyone knows, New York Governor David Paterson has been accused by the NY Commission on Public Integrity (CPI) of having violated the state's gift ban by asking for and receiving five tickets to the first game of last year's World Series, at Yankee Stadium. But the reports are, of course, ignoring the language of the law. Here it is:

NY State Public Officers Law §73(5). No statewide elected official ... shall, directly or indirectly:

(a) solicit, accept or receive any gift having more than a nominal value ... under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part. No person shall, directly or indirectly, offer or make any such gift to a statewide elected official, or any state officer or employee, member of the legislature or legislative employee under such circumstances.

(b) solicit, accept or receive any gift ... from any person who is prohibited from delivering such gift pursuant to section one-m of the legislative law [i.e. lobbyists] unless under the circumstances it is not reasonable to infer that the gift was intended to influence him

Does anybody really believe that when Paterson asked the Yankees for five tickets, the Yankees intended to influence or reward him? No. In fact, the Yankees insisted that the governor say that he was attending on official business.

But this isn't the only problem with the language of "influence." There is also the problem of determining in what circumstances it is reasonable to infer intent to influence, and what guidance this tortured language provides to officials.

However, the biggest problem with the language of "influence" is that it ignores pay-to-play. It assumes that people and firms, especially lobbyists, are seeking to influence government officials, and ignores the fact that government officials often use their positions to get things from contractors and developers.

The CPI report on the case, which came out on Wednesday, refers to three other provisions in the state ethics code. But none of these deals with pay-to-play either, although the first could be twisted to appear that way:

NY State Public Officers §74(3) Standards

d. No officer or employee of a state agency, member of the legislature or legislative employee should use or attempt to use his or her official position to secure unwarranted privileges or exemptions for himself or herself or others, including but not limited to, the misappropriation to himself, herself or to others of the property, services or other resources of the state for private business or other compensated non-governmental purposes (Language in italics effective 2/12/10).

f. An officer or employee of a state agency, member of the legislature or legislative employee should not by his conduct give reasonable basis for the impression that any person can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is affected by the kinship, rank, position or influence of any party or person.

h. An officer or employee of a state agency, member of the legislature or legislative employee should endeavor to pursue a course of conduct which will not raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust.

Subsection d, as amended, makes it clear that "unwarranted privileges or exemptions" was intended to refer to government privileges and exemptions, not to gifts from private individuals or firms. Therefore, it is irrelevant to this matter. Subsection f uses the language of "influence," and subsection h is an all-purpose appearance of impropriety provision, raising the question, Does the attendance at a Yankee World Series game really raise suspicion that a governor is violating the public trust? How many people don't expect to see mayors and governors at major sporting events?

What Paterson did is, in a sense, worse than what the laws of New York, and of many states and local governments, prohibit. What he did was act as if his position — his ability to help or hinder those doing business with the state — gave him the authority, or opportunity, to get something for nothing for his family and colleagues (remember: this wasn't for himself, because the legally blind Paterson couldn't actually see the game, although he could "be there."). Pay-to-play is central to government ethics, because it is all about using one's public position for personal purposes.

The pay-to-play attitude includes asking for, or expecting, all sorts of contributions, from large campaign contributions to contributions to inaugurations, party committees, caucuses, legal defense funds, and favorite charities. This attitude includes asking for, or expecting, flights, loans, property deals, jobs for family, friends, and colleagues, and the like.

Ignoring pay-to-play is ignoring a large part of government ethics.

The Other Side of the Transaction
The other part of government ethics that is being ignored here, as it is too often, is the other side of the transaction. The Yankees spokesperson was quoted by the New York Daily News back in November, at the time the ticket issue became public, as saying, "The burden has to be with the public official. We can't be the ethics police."

Actually, New York's law does deal with those who give gifts. Look at the second sentence of §73(5)(a) above. You can't give and you can't receive. Of course, the language of "influence" gets in the way, but the burden is clearly on both parties to the transaction.

Why isn't the CPI going after the Yankees? After all, the Yankees could have said, "No." Or did they, concerned about a state subsidy, feel obliged to say "Yes"? Of course they did.

If you can't make a solid argument that the Yankees were trying to influence the governor, then you have no case against them in New York state. If you have no case against them, then you lose one of the ways to stop pay-to-play: giving contractors and developers a good reason to say "No." This is yet another way in which the language of "influence" is ineffective in getting government officials to act ethically.

Robert Wechsler
Director of Research-Retired, City Ethics

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