When Is an Ethics Commission "Independent"?

Ethics commissions appointed by local legislative bodies, mayors, or county executives are often referred to as "independent commissions." I don't believe that these commissions should be considered "independent," because those who select the EC members are under the members' jurisdiction and, in fact, are the people most likely to come before them. These EC members are perceived as biased toward their appointing party, which is far from "independence."

According to an article in Capital New York yesterday, the independence of a citizen commission selected by party leaders in the state legislature is the subject of a judicial decision yesterday (the decision is attached; see below). The case involves a referendum that would take redistricting out of the hands of the majority party in the state legislature and hand it to an "independent" commission selected by state legislative leaders from both major parties.

The suit was brought by Common Cause New York, which argued that the ballot language was misleading and designed to “induce a positive vote" (Disclosure: Years ago, I did work for and sat on the board of Common Cause Connecticut). The court agreed, and ordered that the word “independent” be excised from the ballot. The decision says that,

The Commission cannot be described as "independent" when eight of its members are the handpicked appointees of the legislative leaders, and the two additional members are essentially political appointees by proxy. While the proposed amendment establishes qualifications for the members of the commission, each member's allegiance is obviously with the leader who appointed them. ... Therefore, this court finds that the term 'independent' is misleading, because the creation of the commission, its procedures and its ultimate outcomes are all 'subject to control by others.'

As the last sentence shows, the selection process was not the only problem the court found with the use of the word "independence."

I have one major disagreement with the court's consideration of this issue. It says that each member's allegiance is obviously with the member's appointing party. This is not true. What is true is that it may appear to the public that the members are representing legislative party leaders, and that they are, therefore, not at all independent. It is the appearance rather than the fact of allegiance that is controlling.

The same is true with ethics commissions. Whenever an EC dismisses a case against an appointing party or someone who is seen as an ally of an appointing party, the public will perceive this not as an independent decision, but as the decision of individuals protecting those who appointed them. This is why it is so important to have EC members selected by individuals not under their jurisdiction, such as the heads of community organizations.

EC and redistricting commissions are supposed to be citizen commissions that will make independent decisions. Since no one can know whether their decisions are actually made independently or not (that is, where their allegiances are), it is important that they appear to be independent (without allegiances to government officials), so that the public can reasonably believe their decisions are made on the merits only.

Therefore, only ECs whose members have been selected by independent organizations or individuals should be called "independent."

Robert Wechsler
Director of Research-Retired, City Ethics

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