The Real-Life Results of a Lack of Independence and Transparency in an Ethics Program
Last week, I wrote blog posts about how Chicago's ethics program
needs <a href="http://www.cityethics.org/content/chicago-task-force-second-report-iii-…; target="”_blank”">more
independence</a> and <a href="http://www.cityethics.org/content/chicago-task-force-second-report-iv-%…; target="”_blank”">more transparency</a> than the Ethics Reform Task Force recommended. I
couldn't have imagined better evidence to support my criticisms than
what has been happening recently with the New York state Joint
Commission on Public Ethics (JCOPE). The goings-on there show how a
lack of independence combined with too much secrecy can make an
ethics commission open to attacks that undermine its credibility.<br>
<br>
According to <a href="http://blogs.democratandchronicle.com/voteup/2012/09/07/jcope-member-sa…; target="”_blank”">an
article in the <i>Democrat & Chronicle</i></a>, a JCOPE
member resigned on Friday evening, soon after criticizing his
commission. He set out two principal reasons for his resignation.
One was a particular decision of the board: to keep secret the names
of lobbying organizations’ big donors, including donors to one
organization that has thrown a great deal of support behind the
governor's policies. The commission decided that only from July 1
would disclosure be required, protecting from disclosure six months
of contributions, and those who gave them.<br>
<br>
The second involves confidentiality. As the former member said in an
e-mail included in <a href="http://blog.timesunion.com/capitol/archives/153217/cuomo-spox-batra-iss…; target="”_blank”">an
Albany <i>Times Union</i> Capitol Confidential blog post on Friday</a>,
"JCOPE needs disinfectant sunshine because confidentiality may have
become a cloak for possible willful illegality operating with a 'nod
and a wink' means of communication from within JCOPE to a chosen few
for political gain and corrupt back-scratching."<br>
<br>
A different ethics matter is involved here: the decision of
JCOPE not to investigate what <a>the
New York <i>Times</i> refers to</a> as "the use of public money by the
Assembly speaker ... to finance a confidential settlement with two
women who said they were sexually harassed by Assemblyman Vito J. Lopez" (who happens to be the
subject of <a href="http://www.cityethics.org/content/why-local-party-leaders-should-be-par…; target="”_blank”">a
recent City Ethics blog post</a> that focuses on other misconduct).<br>
<br>
Of course, these may be off-the-wall accusations, but the problem is
that everything at JCOPE is politicized, and the answer to most
questions is "No comment." Three of its members are selected by the
senate majority leader, and those three alone can block any
investigation (other members are selected by the governor and other
legislative leaders). According to the Capitol Confidential blog
post, most of JCOPE's senior staff used to work for the governor
when he was New York's attorney general. Therefore, both member and staff decisions can be questioned on political grounds.<br>
<br>
When an ethics commission decides not to investigate someone who
selected three of its members, this creates a crisis of confidence.
Considering that this is JCOPE's first important decision, it is
disastrous.<br>
<br>
While the governor and legislative leaders are publicly supporting a
full investigation by JCOPE, the <i>Times</i> article says that "some of
the legislative appointees, from both political parties, had
concerns about having a commission dominated by a governor’s
appointees look into the internal workings of the Legislature." But
that's its job.<br>
<br>
<b>Either Independence or Jurisdiction</b><br>
If it can't be trusted to do this (and it can't), then there are
only two solutions. One, JCOPE's members must be selected not by
legislative leaders and the governor, but by community organizations
and associations. Or two, JCOPE must give up authority over those
who select its members, their staff, and possibly their colleagues
and appointees. In other words, if an EC is not willing or able to
investigate those under its jurisdiction, due to the selection
process, then either the selection process has to change or the EC's
jurisdiction has to change. If the jurisdiction changes, then the
ethics program will only apply to lower-level officials and
employees, who will feel that the ethics program is unfair. The
public will think the ethics program is toothless. So why have one
at all?<br>
<br>
This is how important independence is. When <a href="http://www.commoncause.org/site/apps/nlnet/content2.aspx?c=dkLNK1MQIwG&…; target="”_blank”">the
head of Common Cause New York says</a>, "This confirms the worst
fears which Common Cause New York and others have had, that the
commission is set up in a way that encourages gridlock designed to
protect powerful elected officials," who's to say she's wrong? Or, more to the point, who will believe those who say she's wrong?<br>
<br>
<b>Secrecy = Leaks + Rumors + Denials + Closed Meetings</b><br>
As for "confidentiality," which I prefer to call "secrecy," it has led to leaks and denials, and a great deal of controversy. <a href="http://www.capitalnewyork.com/article/politics/2012/09/6536845/good-gov…; target="”_blank”">A
Cuomo spokesman has said</a> that reports of a limited
investigation are just rumors, but what else can there be but leaks
and rumors when an ethics proceeding is confidential. Even the JCOPE
member who resigned said that he can't provide any details regarding
his criticisms, because he is sworn to secrecy. So we don't know how just his accusations are. How is secrecy
protecting the assembly speaker? And what is it doing to increase
public trust in government? Nothing.<br>
<br>
JCOPE was scheduled to have a public, webcast meeting this morning,
but the only item on <a href="http://www.jcope.ny.gov/public/agendas/For%20Web%20Public%20Meeting%20A…; target="”_blank”">the
agenda</a> is an executive session on a topic not provided (a
topic is required in many states). Why webcast people waiting for a
closed meeting to end?<br>
<br>
<b>A Lose-Lose Proposition</b><br>
After seeing the ramifications of JCOPE's selection process, why
would any government choose one like this? When serious issues
arise, the selection process gets in the way. A selection
process dependent on high-level officials makes many important EC decisions look preferential
to their appointing authority and their allies, or it allows high-level
officials to replace members who don't support them, or it allows
them to leave the EC without members (or without a sufficient
budget), so that it cannot function. None of these should ever occur.<br>
<br>
The governor and legislative leaders can say they want a full
investigation all they want, but the problem is all their doing.
They can rail at rumors, but it's their choice to let rumors prevail
instead of a transparent ethics program. They set up a system where
any decision on an investigation of them or those close to them will
not gain the confidence of the public unless it deals with them severely. In other words, the selection of EC members by
officials is a lose-lose proposition for officials as well as for the public. New York's high-level
officials need to set up an ethics program that is completely
independent of them. And much more limited in its use of
confidentiality.<br>
<br>
For more on JCOPE and confidentiality, see <a href="http://www.cityethics.org/content/using-confidentiality-smokescreen" target="”_blank”">my
May 2012 blog post</a>.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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