Government Ethics in the City of Albany, NY: Gifts and a Draft Ethics Code

There's a lot of talk about the lack of government ethics in Albany, New York State's capital, but not much about the state of government ethics in the city of Albany itself. In July, the Albany Times-Union ran a long article on the mayor and the police chief's relationship with the city's largest developer. It also noted that the city council is considering an ethics code for the city (attached; see below), which currently has little more than a financial disclosure law (click and go to Chapter 54).

The gifts mentioned in the article do not need to be reported under the city's financial disclosure law. The police department does have gift rule and, twice this year, the developer's owner flew the police chief to Dayton for college basketball games.

The police department rule prohibits the acceptance of any gifts, but only, according to the article, "when it can be 'inferred' that the gift was intended to 'influence action of an official nature.'" Proving such intent is equivalent to proving bribery, which is already a crime. So this rule is of no value. In fact, by giving the illusion that there is a gift rule, and leaving officers such an out ("I didn't feel it was intended to influence anything"), the rule may be worse than no rule at all. This is especially true when the police chief sets an example by accepting such large gifts from someone his department can help through approving traffic safety studies for developments where traffic issues have been a center of contention.

Only the state's lobbying law is relevant, since the developer is the client of a lobbyist. The article says that there is an exception in the state law for gifts between friends, but I couldn't find such an exception. In any event, it does not appear that any action has been taken pursuant to state law.

The attitude of the mayor and the city's planning and development commissioner are most troubling. The commissioner told the Times-Union, "As far as why I attend specific events I really think it's nobody's business. Why I go or what I do when I'm off the clock, I don't understand why that would be newsworthy.'' He was talking about attending fundraising events sponsored by the developer.

The mayor is quoted as saying about the police chief being flown to Dayton twice in one week, "It's not a big deal. The chief can go to a game."

What makes these relationships so upsetting is that other area developers appear to feel that the city's big developer is so favored that it's not worth bidding on projects there. This is the worst result for the people of Albany. This could cost them many millions of dollars a year.

On May 18, the draft ethics code was sent to the council's law, buildings and code enforcement committee. I couldn't find anything about it on the Albany site or anywhere else.

I think it's worth a look at the draft code's gift provision, §54-6. First of all, it preserves the police department's "intended to influence" language, but then prohibits any gift given "under circumstances that would create an appearance of impropriety."

The draft rule also prohibits any gift from a person who has in the past twelve months received a financial benefit from the official's action, which anyone would consider would create an appearance of impropriety. In fact, a gift from someone seeking a financial benefit or rewarding an official for a financial benefit that will, by contract, be received in the future also creates an appearance of impropriety. However, since such gifts were left out of the provision, an official can easily say the council felt such gifts were okay.

In addition, the draft code's odd definition of "gift" opens up a very big hole. Here's the definition:


As long as the official has promised some significant gift in the future, such as a tickets to a future game (it doesn't have to be the exact equivalent, say, a flight to Dayton), a gift is okay, even if it creates an appearance of impropriety, or even when it is intended to influence the official. In fact, as a non-gift, it need not be disclosed, no matter how large.

Gift provisions often exclude loans at market rates, although getting a loan from someone doing business with the city is itself questionable. But this gift definition would allow a loan that could be paid with any significant consideration, say 50% of the principal and twenty years in the future. Any gift can be portrayed as a loan. This is not a serious gift provision. It will create more appearances of impropriety than it will prevent.

But there's a lot of good in this code. For example, it creates an ethics board (it's been at least fifteen years since Albany had one) and the board has teeth. However, its members would be appointed by a committee consisting of the mayor, the council president, and the city's senior judge and, therefore, not appear independent of politicians.

There would be ethics training and applicant disclosure. Gifts must be disclosed, but only those over $200 (and that figure is not an aggregate, so that daily gifts of $199 need not be disclosed).

The code would be a big step forward for Albany's city government, but it could be greatly improved.

Robert Wechsler
Director of Research-Retired, City Ethics

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