The Problems with an Executive's Ethics Commission
The big news in the government ethics world today is <a href="http://www.nytimes.com/2014/07/23/nyregion/governor-andrew-cuomo-and-th…; target="”_blank”">the
investigative piece in the New York <i>Times</i></a> 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 <a href="http://www.cityethics.org/content/nys-moreland-commission-recommendatio…; target="”_blank”">my
blog post</a> on its recommendations).<br>
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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.<br>
<br>
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.<br>
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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).<br>
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<b>Whose Commission Is It?<br>
</b>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.”<br>
<br>
He wrote in his statement to the <i>Times,</i> “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.”<br>
<br>
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.<br>
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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.<br>
<br>
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 . . .”<br>
<br>
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.<br>
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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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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