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.<br>
<br>
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:<br>
<ul>
<p> <a href="http://www.nyintegrity.org/law/ethc/POL73.html" target="”_blank”">NY State
Public Officers Law §73</a>(5). No statewide elected official ...
shall, directly or indirectly: </p>
<p> (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. </p>
<p>(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</p>
</ul>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<a href="http://www.nypost.com/r/nypost/2010/03/03/news/media/paterson.pdf" target="”_blank”">The
CPI report on the case</a>, 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:<br>
<ul>
<p><a href="http://www.nyintegrity.org/law/ethc/POL74.html" target="”_blank”">NY State
Public Officers §74</a>(3) Standards</p>
<p>d. No officer or employee of a state agency, member of the legislature
or legislative employee should use or attempt to use his <i>or her</i>
official position to secure unwarranted privileges or exemptions for
himself <i>or herself</i> or others, <i>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</i>
(Language in italics effective 2/12/10).</p>
<p>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.</p>
<p>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.</p>
</ul>
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?<br>
<br>
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.<br>
<br>
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.<br>
<br>
Ignoring pay-to-play is ignoring a large part of government ethics.<br>
<br>
<b>The Other Side of the Transaction</b><br>
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 <a href="http://www.nydailynews.com/news/2009/11/03/2009-11-03_state_watchdog_pr…; target="”_blank”">quoted
by the New York Daily News</a> 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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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