Orange County, NY Grand Jury Ethics Reform Recommendations

Another day, another grand jury report recommending government ethics reform. This report (attached; see below) comes from Orange County, NY, a county northwest of New York City, whose biggest town is Newburgh and whose most famous towns include the very different Tuxedo and Kiryas Joel.

The report criminally exonerates the county legislator who is its subject, because he did a couple things right:  he sought ethics advice from the ethics board, and he disclosed his employment with a county contractor to the county legislature's attorney (who responsibly told the legislator to seek an ethics opinion from the ethics board) and other county officials, and in his annual disclosure statement. But the report does recognize that there are still problems which should be considered by the ethics board, including (1) the legislator's vote on a project when he was in talks about employment with a contractor working on the project, and (2) the legislator's signing in to a meeting, which was chaired by a county official, as a county legislator, and then soliciting business for the contractor he had been employed by.

Despite its exoneration of the legislator, the grand jury — like many grand juries and unlike most local legislatures — took a look at the county's ethics program as a whole, making recommendations that went beyond those that would prevent the particular misconduct it was considering. However, it still made piecemeal recommendations, without any research into best practices (there is mention only of some state and nearby practices, and government ethics programs in New York state are not, on the whole, very good). Here is a list of its most important recommendations:

1. Make contractors subject to the same disclosure requirements as county officials. It's noteworthy that witnesses repeatedly recommended this. The grand jury rightly notes that, "in the instant matter, if Vendor X had filed a disclosure form, then legislators would have been made aware of the conflict even in the absence of Legislator A’s disclosure." The grand jury also notes that, in certain areas, such as the county nursing home and airport, a contractor acts with all the powers of a department head, and yet need not file any disclosures.

2. Clarify the role of counsel to the county legislature, so that everyone knows (1) whether the counsel represents solely the interests of the legislature or also the interests of individual members, and (2) whether counsel to individual legislators is confidential. It is valuable to recognize and deal with government attorneys' conflicts of interest.

3. Significantly increase the ethics board budget, which is only $10,000 a year, which goes for counsel, a secretary, and office supplies.

4. Mandate ethics training, and provide an online course.

5. Pass post-employment provisions that would create a cooling-off period before high-level officials could take a job with a contractor, as occurred in the case the grand jury was considering.

6. Prohibit officials from soliciting employment with contractors if they were involved in any way with the awarding of their contract.

7. Require the reporting of conflicts of interest to the ethics board.

8. Switch to an aggregate gift limit rather than the current per-instance limit of $75.

9. Upgrade the annual disclosure form to include more information and to have clearer language (giving, as examples, the state form and a neighboring county's form).

10. Post annual disclosure forms and advisory opinions on the county website.

11. Change the ethics board selection process, but only to even out the selections of the executive and legislative branch and to prevent one political party from dominating, not to make the board independent of those under its oversight and jurisdiction.

12. Prohibit officials from sitting on committees that have oversight over departments where their spouses or children are employed (what about siblings and parents?).

13. Clarify whether the county legislature has the authority to censure its members. I would add that it should also clarify what to do when both ethics board and county legislature are considering related allegations of misconduct (it is best that such matters be dealt with by an independent body rather than self-enforced).

These are good recommendations, as far as they go. But they would have been much better if made in the light of best practices and within a vision of what a local government ethics program should be. The grand jury started out on the right foot, recognizing that the "current ethics program is inadequate, outdated, underfunded and largely disregarded." It quoted one official as saying, “I don’t believe anybody really knows what they’re supposed to be doing.” But it didn't take the next step of saying what the ethics program is supposed to be doing, and what it is supposed to be (e.g., that it is supposed to be independent and have a monopoly on ethics advice and enforcement).

However, it did a much better job than the Orange County legislature or the legislative bodies of the great majority of local governments in New York state or in other states. It is sad that most of the best recommendations for government ethics reform come from outside governments, from grand juries, good government groups, bar associations, and task forces (but not from academia). Because of this, it is unlikely that these recommendations will be accepted or, even if most of them are turned into law, that they will become the basis for an effective ethics program.

Let's hope that Orange County goes against the odds and creates a program that other New York counties can use as a template.

Robert Wechsler
Director of Research-Retired, City Ethics

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