Beyond the Criminal Enforcement Paradigm: Dealing with Unwritten Rules

I have written about the need for ethics commissions to go beyond the criminal enforcement paradigm, which limits commissions to determining whether an individual respondent has violated an ethics provision or not. It is hard to find instances of a commission looking at the bigger picture, that is, at the common practices and unwritten rules that underlie an individual's ethical misconduct. I read about such an instance in the New York Times yesterday.

The commission is the New York State Commission on Judicial Conduct. The commission's report on Judge Luis Gonzalez, dated March 30, dismisses three of four charges against the judge. As for the fourth charge, regarding nepotism in hiring, the commission goes beyond the judge's conduct to look at common practices among judges with respect to hiring for administrative positions.

What the commission found was that vacancies for administrative jobs typically have been posted not in advertisements or on the court website, as is otherwise the process, but only in internal rooms at the courthouse that are not accessible to the public. This unwritten rule seriously favored the relatives and friends of those already employed by the court system. This had been the common practice for decades before charges were brought against one particular judge.

Some judges, including Judge Gonzalez, took hiring out of the hands of the Clerk of Court and into the hands of the judge's executive assistant. This also meant that no hiring panel would be involved.

The judge's principal defenses were (1) everybody does it and (2) all the people hired were qualified.

So the commission looked into what everybody else was doing. It turned out that everybody wasn't doing the same thing as Judge Gonzalez' division. At least one appellate division adopted a detailed written hiring protocol (a formal process, which is what every office should have) that requires job openings to be announced via the Office of Court Administration website, and requires the formation of a committee to interview and recommend candidates. At least two of the four departments have “employment opportunities” pages on their individual websites.

The commission made detailed recommendations after more generally recommending that the chief judge and others responsible "collectively examine the hiring practices of the Appellate Divisions, capitalize on existing strengths, devise uniform and more comprehensive guidelines for judges and court employees in order to promote merit and avoid even the appearance of nepotism and favoritism, and adopt more uniform hiring and employment protocols." Two of the detailed recommendations involved the withdrawal from participation in hiring of employees with relationships to job candidates, and a nepotism rule relating to supervisors and subordinates.

There is no reason that a local ethics commission cannot go beyond the individual case before it, in order to examine the history and breadth of rules and practices that allow or lead to ethical misconduct. And there is no reason that an ethics commission cannot include its conclusions and recommendations either in its decision or in a separate report.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959