NY State Comptroller Reports on Local Government Ethics and Provides a Model Code
New York State's new comptroller (see <a href="http://www.cityethics.org/content/excellent-description-unethical-envir…; target="”_blank”">an
earlier blog post</a> about the prior comptroller's ethical problems)
has recently produced a report based on an audit of 31 New York local
governments and a survey of many more (see the <a href="http://www.osc.state.ny.us/press/releases/mar10/031810.htm" target="”_blank”">press
release</a> for an overview). The 26-page report is entitled <a href="http://www.osc.state.ny.us/localgov/audits/swr/2010/ethics/ethicsoversi…; target="”_blank”">Ethics
Oversight in New York State Municipalities</a>, and it comes complete
with a model local government ethics code that, unlike some of the
other recent model codes (<a href="http://www.cityethics.org/content/new-michigan-model-local-government-e…; target="”_blank”">Michigan
</a>and <a href="http://www.cityethics.org/content/illinois-model-local-government-ethic…; target="”_blank”">Illinois</a>),
is halfway decent.<br>
<br>
<b>The Report</b><br>
The report, and its audit and survey, give little in-depth information
about ethics oversight in NY local governments. Essentially, we are
told that some jurisdictions do not include all four of the elements
required by NY's <a href="http://www.orps.state.ny.us/legal/GMLART18.pdf" target="”_blank”">General
Municipal Law</a>, and some don't even have an ethics code, as
required. Here are the four elements required by the GML:<br>
<ul>
...standards for officers and employees with respect to disclosure of
interest in legislation before the local governing body, holding of
investments in conflict with official duties, private employment in
conflict with official duties, future employment and such other
standards relating to the conduct of officers and employees as may be
deemed advisable.<br>
</ul>
It isn't until page 17 out of 26 that we learn how the local
governments are dealing with some of the other basic standards, which
they are not obliged to cover. Here's what the report says:<br>
<ul>
While most of the 31 local governments we visited included language in
their codes to address gifts and favors, the codes did not include
guidance about other ethical issues. For example, 61 percent of the
local governments’ codes did not address misuse of municipal resources,
45 percent did not address recusal, and 84 percent did not address the
hiring and supervision of relatives.<br>
</ul>
In addition, less than half of the audited jurisdictions distribute
their codes to officials and employees (as required by the GML), less than half have an active ethics commission (not required), and only 20% provide any ethics training (not required).<br>
<br>
Under <a href="http://www.osc.state.ny.us/localgov/audits/swr/index.htm" target="”_blank”">2010
releases</a>, you can find the comptroller's letters to each of the
audited local governments, telling them in what specific ways the
comptroller thinks they fall short of proper ethics oversight.<br>
<br>
In <a href="http://www.cityethics.org/content/effect-nycs-conflicts-interest-board-…; target="”_blank”">a
recent blog post</a>, I identified one serious cause of New York
State's problem : the fact that the state's largest cities have poor to
mediocre ethics programs themselves. Good city ethics programs are
important not only to the cities themselves, but also to surrounding
communities that look to cities for best practices and professionally
written laws.<br>
<br>
<b>The Model Code</b><br>
<a href="http://www.osc.state.ny.us/localgov/pubs/codeofethics.pdf" target="”_blank”">The
comptroller's model code</a> has some well-written provisions, but like
most model codes, all of its good work is in the ethics provisions
rather than in the administrative provisions. Not only does the model
code not provide for an independent ethics commission, but it even
requires that the EC have an official or employee on it (and there can
be multiple officials, short of a majority). There is no other guidance with respect to EC membership.<br>
<br>
No training is recommended in the model code, even though the
comptroller's report sees the lack of training as a serious problem.<br>
<br>
There is no guidance with respect to complaints, investigations,
hearings, and penalties. There is no sample annual financial disclosure
statement (an option in the GML), nor is there anything about applicant
disclosure.<br>
<br>
Highlights of the ethics provisions include:<br>
<ul>
Use of the language of benefit rather than interest (see <a href="http://www.cityethics.org/content/interest-vs-benefit" target="”_blank”">my recent
blog post</a> on this)<br>
Requirement of recusal where there is a possible personal benefit<br>
Prohibition against acquiring investments and taking outside employment
that "can be reasonably expected to require more than sporadic recusal
and abstention" (good and unusual language that I plan to add to the
City Ethics Model Code)<br>
Improvement to state gift provision (but too many exceptions)<br>
</ul>
Especially poor ethics provisions:<br>
<ul>
Provisions that simply reference the state's General Municipal Law,
forcing people to look it up<br>
Confidential information (see <a href="http://www.cityethics.org/content/divulging-confidential-information-no…; target="”_blank”">this
blog post</a>) (the language is right out of the GML)<br>
</ul>
It's good that the new comptroller is interested in local government
ethics, and his report and model code together are an excellent start.
But just as the comptroller recommends that local governments do an
annual review of their ethics codes, the comptroller will hopefully ask
for feedback, do his own review, and soon provide an improved model
ethics code.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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