Relations Between Superiors and Subordinates: Three Cases from New York City

Here are three cases from New York City that involve relations between superiors and subordinates, one of the most important aspects of local government ethics. What is especially interesting is that two of these cases involve co-opting, in one case of subordinates, in the other of vendors. These cases were included in COGEL's ethics update last week.

Co-opting Subordinates
The first case involves a school principal who obtained a waiver from the New York City Conflicts of Interest Board (COIB) to act as the executive director of a nonprofit that did business with the city, but not with the department of education (DOE). The waiver expressly pointed out that the principal could work for the nonprofit only at times when not required to work for the DOE, could not use his DOE position or title to obtain any private advantage for himself or the nonprofit, and could not use DOE equipment, letterhead, personnel, or other city resources in connection with the nonprofit.

The principal admitted in his settlement agreement with the COIB and DOE that, a few years after receiving the waiver letter, the principal's nonprofit engaged in business dealings with the DOE, that he used his position as principal to help a client of the nonprofit get a job at his school, and that he intertwined the nonprofit's operations with those of his school, including using the school’s phone numbers and mailing address for the organization. Most serious, the principal hired two of his DOE subordinates to work for him at his nonprofit, knowing that neither DOE employee had obtained the necessary waiver from the COIB, thereby caused these subordinates to violate the law.

Causing subordinates to break an ethics law, or any law, is an extremely serious ethics violation. It is, for some unethical officials, the best way to prevent subordinates from turning them in.

Co-opting Vendors
In the second case, a former school custodian hit the jackpot, leading to the largest fine ever imposed by the COIB ($20,000). According to the settlement agreement, the custodian admitted to having used school funds from three school vendors for personal purchases, and then getting the vendors to falsify invoices to conceal this personal use of funds. He also used his staff to do work on his home, without pay, in some instances during the time they were supposed to be working for the city.

I don't know if anything was done to the vendors. They may not be under the COIB's jurisdiction, but they certainly should be penalized for falsifying invoices.

Obtaining a Subordinate's Services
Everyone knows that a superior should not have a subordinate do personal work for him, but this usually involves work on one's home or running errands. In a 1992 advisory opinion, the COIB made it clear that this prohibition also applies to legal representation, whether or not it is compensated and whether or not the individuals have a personal relationship.

A deputy chief administrative law judge admitted in his settlement agreement with the COIB that he had accepted free legal representation in his divorce proceeding from a subordinate administrative law judge, and that his ignorance of the advisory opinion does not excuse his failure to comply with it.

It is an issue whether officials can be expected to know about advisory opinions, unless they are made easy to find or they are simply clarifying what is already there in the law. In this instance, both are true, at least partially.

If one goes to the COIB website, clicks on the advisory opinion search, and types in "representation" and "subordinate," the relevant advisory opinion comes up. But if you type in "legal representation" and "subordinate," the opinion does not come up. Searches are only as good as the individual doing the search. The best thing to do is to annotate one's ethics laws with short summaries of relevant advisory opinions, with hyperlinks to them. Then one can expect an official to go the next step to checking out relevant advisory opinions. I don't recall ever having seen this done.

Both the superior and the subordinate were fined, but the superior was fined twice what the subordinate was fined. I wonder if the subordinate would have been fined at all if he had not been an attorney, that is, someone expected to be able to research the law.

Robert Wechsler
Director of Research-Retired, City Ethics

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