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."<br>
<br>
According to <a href="http://www.capitalnewyork.com/article/albany/2014/09/8552741/judge-redi…; target="”_blank”">an
article in Capital New York yesterday</a>, 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.<br>
<br>

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,<blockquote>

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.'</blockquote>

As the last sentence shows, the selection process was not the only
problem the court found with the use of the word "independence."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <i>appear</i>
to be independent (without allegiances to government officials), so that the public can reasonably believe their
decisions are made on the merits only.<br>
<br>
Therefore, only ECs whose members have been selected by independent
organizations or individuals should be called "independent."<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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