NY State Bar Association Report on Local Government Ethics Reform

Anonymous

Tue, 02/22/2011 - 04:33

Advisory Opinions

On January 28, the New York State Bar Association issued <a href="http://www.nysba.org/AM/Template.cfm?Section=Home&Template=/CM/ContentD…; target="”_blank”">a
report on government ethics reform in New York State</a>, which
includes a section on local government ethics reform. The report points out the many inadequacies of <a href="http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDAT…; target="”_blank”">Article
18 of the General Municipal Law</a> (click on GMU, then scroll down and
click Art. 18), and recommends major improvements in what the state requires of local governments with respect to ethics.

Criminalizing Conflicts 
The first observation of the bar association's subcommittee on local government ethics is that the state ethics law has "a heavy-handed
prohibition on having an interest in a contract with one’s
municipality, a violation of which is a misdemeanor." (p. 57) The
report notes that this makes life difficult especially for smaller
local governments. It also means that other conflicts, such as with
respect to planning decisions, are not dealt with by the code. The report
recommends replacing the conflict prohibition with a strong disclosure
and recusal requirement. 
 
Weak Provisions 
The report then notes that state law does not require local governments to
pass "comprehensive and effective" ethics codes, so that "politicial and
legal obstacles" are left to prevent such codes from being passed. State law does require weak local ethics codes, but not ethics boards. Like so many state laws on local government ethics, New York's does not
require the setting up of ethics programs, and so ethics programs are
not set up. 
 
Article 18's ethics provisions are weak, as well. According to the report,
it permits municipal
officials to hire their spouses for a municipal position. And the gifts
provision, which contains language involving influence and reward,
provides virtually no guidance for municipal officials. The report
recommends replacing the gift provision with a bright-line rule. 
 
The current law does not prohibit the use of municipal resources by
officials and employees. The report recommends adding this very common
ethics provision. 
 
The current law also does not cover those doing business with local
governments. The report recommends placing requirements on them,
including a prohibition of inducing officials to violate the ethics
code, a requirement to disclose officials' interests, the provision
of debarment for code violators, and a prohibition of an official's
employer from appearing before the official or his board. 
 
Ethics Advice 
As for advice, county ethics boards are relied on to do this. But their
role is called "a dismal failure." The report notes that there are dozens, sometimes hundreds of
local governments within each county, and few county ethics boards (in
those counties that have such boards) actually do
provide advice. The
report asks for a requirement that every local government either create
its own ethics board or a joint ethics board with other local
governments. It could also contract out its ethics administration to
another ethics board. This shows great understanding of the alternative ways of setting up ethics boards. 
 
The Independence of Ethics Boards 
The most extensive discussion on local government ethics concerns the
independence of ethics boards. Here is this valuable discussion (pp.
66-67):<ul>

The independence of ethics boards, both in reality and perception, is
critical. An ethics board that lacks independence will lack credibility
and perhaps fairness, if not in fact then in appearance. 
 
There is an understandable tendency for a municipal administration to
exercise direct or indirect influence over its appointed boards and
commissions. For example, a municipal attorney or other official
appointed to a board may feel that he or she is in the best position to
call meetings, set the agenda, or guide the board in its deliberations.
But, even with the best of intentions, an ethics board dominated by
administration insiders cannot exercise independent judgment and
oversight. 
 
To ensure both the reality and the perception that the board can and
does operate independently, members should be appointed for fixed,
staggered terms and removable only for cause and only after a due
process hearing. The law should require that vacancies be filled and
holdover members replaced or reappointed promptly. The membership
should be bipartisan or multi-partisan. Consideration should be given
to requiring that ethics board members be appointed upon nomination by
a nominating committee. Officers and employees of the municipality
should be prohibited from serving on the ethics board, lest the
apparent presence of a “mole” on the ethics board discourage municipal
officers and employees from seeking advice or filing a complaint, for
fear that their action will be reported to their superior, who might
retaliate. In addition, ethics board members should be prohibited from
holding any political party office, running for any elective office,
participating in any election campaign, appearing on behalf of any
person before any agency of the municipality, lobbying any agency of
the municipality, or entering into a contract with the municipality. 
 
Ethics board members should select their own chair. Meetings should be
called by the chair or by a majority of the members. Since few
municipalities will have sufficient resources to provide a staff for
the ethics board, the board will need clerical assistance from
municipal staff, who must, by law, be prohibited from revealing ethics
board business to anyone outside the ethics board. Similarly, few
municipalities will have sufficient resources to provide separate legal
counsel for the ethics board. But, having the municipal attorney advise
the ethics board raises, again, the specter of a “mole” on the board.
Article 18 should therefore require that municipalities provide
separate counsel on a case-by-case basis upon request of the ethics
board and perhaps should also require that the municipality provide a
budget sufficient for the ethics board to meet its mandate.</ul>

The report goes on to recommend the requirement of ethics training, and
to emphasize the importance of independent advice. 
 
Enforcement 
The report then takes cognizance of the surprising fact that "with the
exception of criminal prosecution of the prohibited interest, land use
disclosure provisions and civil fines for violations of the financial
disclosure law, Article 18 neither requires nor authorizes the
enforcement of ethics provisions." [emphasis added] The report
recommends that local ethics boards be given the power to investigate and
enforce ethics law violations. 
 
Internal Investigations 
The report also delves into an area that is not usually covered: the need for
clear guidance with respect to how to handle internal investigations,
including when to get an outside agency to do the investigation, what
to do when an elected official or agency head is being investigated,
when it is appropriate to use the local police, sheriff, or state
police, and what allegations require notification of state or federal
criminal authorities. The report recommends that the attorney general's
office provide procedural models and training on this topic. 
 
Lobbying 
Finally, the report recommends a lobbying law for local governments,
with the goal of providing guidance for local officials and those doing
business with them. It emphasizes three areas: registration,
improper conduct, and appropriate contacts. 
 
Confidentiality 
The only part of the report that disappointed me is its emphasis on confidentiality
in the ethics process, and its failure to consider arguments against
confidentiality. 
 
Local Government Ethics Reform in New York State 
According to the report, the history of local government ethics reform
at the state level has been one of inaction. In 1991, a Temporary New
York State Commission on Local Government Ethics recommended a whole
new Article 18 (it is nearly fifty years old), and its recommendations
received support statewide. But a bill based on its recommendations
died in committee then, and again in 1999. 
 
There's a lot that is missing from this report (wouldn't it be nice if reports like this made a list of the the topics they decided not to cover?). But let's hope that this report, as well as the state comptroller's (see <a href="http://www.cityethics.org/content/ny-state-comptroller-reports-local-go…; target="”_blank”">my
blog post on this 2010 report</a>), will make 2011 the year for local
government ethics reform in New York State. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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NY State Bar Association Report on Local Government Ethics Reform

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