What to Do, and Not to Do, When a Conflict Situation Becomes Public
What is the worst thing a government official can do when a conflict
situation becomes public? Is it worse to misrepresent the law, to
make accusations against those making the conflict situation public,
or to ignore the situation and hope nobody notices?<br>
<br>
New York governor Andrew Cuomo has done all of the above with
respect to the exposure of a secret gift of $2 million by an association of gambling
companies to a 501(c)(4) organization closely associated with the
governor. According to <a href="http://www.nytimes.com/2012/06/05/nyregion/gambling-interests-gave-cuom…; target="”_blank”">an
article in today's New York <i>Times</a>, the gift was given, in two
parts separated by four days, at just the time the governor wrote an
op-ed article supporting the expansion of casino gambling in New
York state, and the 501(c)(4) organization added legalized gambling
to its list of priorities.<br>
<br>
The gift was not made out of the blue. According to the article, the
gambling association had considered an advertising campaign, but was
encouraged by the Cuomo administration to contribute to the
501(c)(4) instead, "effectively putting the gambling industry’s cash
behind the committee’s promotion of Mr. Cuomo’s agenda."<br>
<br>
According to <a href="http://www.jcope.ny.gov/law/ethics.html" target="”_blank”">the
state's ethics code</a> (Public Officers Law §73.5):<ul>
No statewide elected official ... shall, directly or indirectly: (a)
solicit, accept or receive any gift having more than a nominal value
... under circumstances in which it could reasonably be inferred
that the gift was intended to influence him, or could reasonably be
expected to influence him, in the performance of his official duties
or was intended as a reward for any official action on his part.</ul>
It appears that the governor did, directly or indirectly, solicit the
gift to the 501(c)(4), and it can reasonably be inferred that the
gift was intended to influence or reward the governor. The law does
not require that the gift be given directly to the governor, or that
it be proven that it influenced him.<br>
<br>
And yet the governor "strongly disputed any suggestion that he was
influenced by money from the gambling industry. He noted that he had
expressed support for an expansion of casino gambling months before
the contributions were made, and that he had diverged from the
gaming association on several key issues."<br>
<br>
His argument that he was not influenced is, effectively, an argument
that, if anything, he was rewarded for his support, which is equally
a violation of §73.5. But what he apparently meant to do was to
imply that the law requires there be actual influence. This is not the
case. Proof of actual influence is required only for the crime of bribery.<br>
<br>
But worse, I think, is the attack on those who made the gift public. The
governor's spokesman wrote, “To try to suggest an improper
relationship between the governor and gaming interests is to distort
the facts in a malicious or reckless manner.”<br>
<br>
The facts don't have to be distorted, maliciously or otherwise.
There is a clear relationship based upon a huge gift to an
organization close to the governor. What needs to be done is not to
make accusations of malice and recklessness against those pointing
out this relationship. What needs to be done is to deal with this
situation responsibly.<br>
<br>
Instead, the governor is acting as if there is no issue that
requires action. No press release on the topic has come out, nor has
the governor tweeted on the topic. I hope this silence changes to a
recognition that there is a problem and that it should be dealt with
as quickly and responsibly as possible.<br>
<br>
What could be done? The 501(c)4) could return the money and take no
position on gambling. It could also insist that all contributions to
it are quickly disclosed online.<br>
<br>
The governor could make a sincere apology, recognizing that it is
reasonable to believe that he was rewarded and/or influenced by the
gift. And he could promise that he will no longer solicit gifts to the 501(c)(4),
directly or indirectly.<br>
<br>
And finally, the governor could sit down with the state ethics commission and
agree to a reasonable penalty for what occurred.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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