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The Problems with an Executive's Ethics Commission
Wednesday, July 23rd, 2014
Robert Wechsler
The big news in the government ethics world today is the
investigative piece in the New York Times about New
York governor Andrew Cuomo's interference in the work of the
Moreland Commission he created to investigate corruption in the
state government and to recommend reforms to prevent such corruption
(see my
blog post on its recommendations).
Not only did Cuomo and his secretary meet with and contact the commission co-chairs, telling them not to go after certain groups associated with the governor. In addition, the commission's executive director, appointed by the governor, read the e-mails of commission members and staff, and reported to the governor's office, providing confidential information for the governor's personal and political benefit.
This is likely to blow up in the governor's face, and further undermine trust in New York state's government. This situation should serve as a warning to the many jurisdictions where the local executive and/or legislative body appoint ethics commission members and, even more seriously, appoint the chair and the staff (usually the EC is staffed by the city or county attorney's office). This is a scandal waiting to happen. When the EC dismisses a complaint against its appointing authority, or its close allies or appointees, it looks like it was acting in the interest of the appointing authority, if not at its direction (possibly through the city or county attorney). Since there is no way for the public to know how much interference there was, it is reasonable to assume that some level of interference occurred. And such interference is a misuse of office that provides preferential treatment.
On the other hand, if EC members were selected by community organizations and the EC selected its own chair and staff, there would be no reason to believe that there had been interference by high-level officials, or that any attempt at interference had been successful (not all of Cuomo's interference was successful, because many independently-minded prosecutors were on the commission and its staff, but much of the interference was successful, including the commission's premature demise).
Whose Commission Is It?
Some of what Gov. Cuomo said shows how a high-level official truly feels about a commission he created (even if to rid the state of government corruption) and whose staff and members he appointed, at least in part. After allegations of interference this spring, Cuomo told a reporter, “It’s my commission. I can’t ‘interfere’ with it, because it is mine. It is controlled by me.”
He wrote in his statement to the Times, “A commission appointed by and staffed by the executive cannot investigate the executive. It is a pure conflict of interest and would not pass the laugh test.”
However, the executive order instituting the commission said nothing about investigating only the legislature, and the governor's office interfered with matters that involved groups independent of the governor, but which either supported or did business with the governor's campaigns. In other words, he became sensitive to conflicts of interest only as a defense, and thought nothing of conflicts when he interfered in the commission's investigations and effectively narrowed its jurisdiction far beyond what the executive order or the governor's earlier statements said.
It's not the hypocrisy that matters. It's the fact that if you're going to investigate the ethical misconduct of government officials, officials in that government should not take part. This is where the principal conflict of interest lies. At the local level, an ethics commission should not in any way be the mayor's, nor should it in any way look like it is being controlled by the mayor. In fact, it should be just the opposite, or it may look like a part of the corruption, rather than a way to prevent or enforce against it.
Another problem with an executive instituting a commission to go after legislators and obtain ethics reform from them is that it looks like the executive is using the commission to effectively blackmail the legislators into passing ethics reforms. This might work for other kinds of legislation, but it is not an appropriate way to get ethics reforms passed. In fact, this is what the governor said himself: “I couldn’t say to them, ‘You have to give me a public finance system, or Moreland is going to continue to investigate.’ That would have been unethical . . .”
At best, it makes it look like a scheme to make the executive look like he is a good government kind of guy, while any legislator who opposes him in the next election is not.
It's also worth noting that when an executive investigates a legislative body, the legislators are likely to refuse to cooperate, calling on the Speech or Debate Clause to fight subpoenas, as some of those did with respect to the Moreland Commission. For this reason, an executive is the worst person to form and select the members of an ethics-oriented commission. Such a commission should be selected by independent civic organizations, with the approval of the legislative body.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Not only did Cuomo and his secretary meet with and contact the commission co-chairs, telling them not to go after certain groups associated with the governor. In addition, the commission's executive director, appointed by the governor, read the e-mails of commission members and staff, and reported to the governor's office, providing confidential information for the governor's personal and political benefit.
This is likely to blow up in the governor's face, and further undermine trust in New York state's government. This situation should serve as a warning to the many jurisdictions where the local executive and/or legislative body appoint ethics commission members and, even more seriously, appoint the chair and the staff (usually the EC is staffed by the city or county attorney's office). This is a scandal waiting to happen. When the EC dismisses a complaint against its appointing authority, or its close allies or appointees, it looks like it was acting in the interest of the appointing authority, if not at its direction (possibly through the city or county attorney). Since there is no way for the public to know how much interference there was, it is reasonable to assume that some level of interference occurred. And such interference is a misuse of office that provides preferential treatment.
On the other hand, if EC members were selected by community organizations and the EC selected its own chair and staff, there would be no reason to believe that there had been interference by high-level officials, or that any attempt at interference had been successful (not all of Cuomo's interference was successful, because many independently-minded prosecutors were on the commission and its staff, but much of the interference was successful, including the commission's premature demise).
Whose Commission Is It?
Some of what Gov. Cuomo said shows how a high-level official truly feels about a commission he created (even if to rid the state of government corruption) and whose staff and members he appointed, at least in part. After allegations of interference this spring, Cuomo told a reporter, “It’s my commission. I can’t ‘interfere’ with it, because it is mine. It is controlled by me.”
He wrote in his statement to the Times, “A commission appointed by and staffed by the executive cannot investigate the executive. It is a pure conflict of interest and would not pass the laugh test.”
However, the executive order instituting the commission said nothing about investigating only the legislature, and the governor's office interfered with matters that involved groups independent of the governor, but which either supported or did business with the governor's campaigns. In other words, he became sensitive to conflicts of interest only as a defense, and thought nothing of conflicts when he interfered in the commission's investigations and effectively narrowed its jurisdiction far beyond what the executive order or the governor's earlier statements said.
It's not the hypocrisy that matters. It's the fact that if you're going to investigate the ethical misconduct of government officials, officials in that government should not take part. This is where the principal conflict of interest lies. At the local level, an ethics commission should not in any way be the mayor's, nor should it in any way look like it is being controlled by the mayor. In fact, it should be just the opposite, or it may look like a part of the corruption, rather than a way to prevent or enforce against it.
Another problem with an executive instituting a commission to go after legislators and obtain ethics reform from them is that it looks like the executive is using the commission to effectively blackmail the legislators into passing ethics reforms. This might work for other kinds of legislation, but it is not an appropriate way to get ethics reforms passed. In fact, this is what the governor said himself: “I couldn’t say to them, ‘You have to give me a public finance system, or Moreland is going to continue to investigate.’ That would have been unethical . . .”
At best, it makes it look like a scheme to make the executive look like he is a good government kind of guy, while any legislator who opposes him in the next election is not.
It's also worth noting that when an executive investigates a legislative body, the legislators are likely to refuse to cooperate, calling on the Speech or Debate Clause to fight subpoenas, as some of those did with respect to the Moreland Commission. For this reason, an executive is the worst person to form and select the members of an ethics-oriented commission. Such a commission should be selected by independent civic organizations, with the approval of the legislative body.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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