The Spitzer Report and the Need for Clearer Boundaries Between Public and Private Work
The New York State Commission on Public Integrity released <a href="http://www.nyintegrity.org/enforcement/norc.html" target="”_blank”">a report</a>
yesterday on the allegations relating to the Spitzer Administration's
attempts to gather and make public the travel abuses of the Senate
Majority Leader, in order to tarnish his reputation. See <a href="http://www.nytimes.com/2008/07/25/nyregion/25ethics.html" target="”_blank”">the
New York Times article</a>.<br>
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There are two issues I would like to focus on, both of which involve government employees (a police superintendent and a lawyer) doing private work for public officials.<br>
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<a href="http://www.cityethics.org/node/477">Click here to read the rest of this blog entry.</a>
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First, the use by
politicians of the police for personal or political purposes. The State
Police was asked to recreate the Senate Majority Leader's travel itineraries (including his use of state aircraft for political purposes), and the Police
Superintendent worked with troopers to do this, knowing that it would
be given to the news media and that the work went against police procedures. The superintendent is one of the four
officials against whom ethics charges were brought, and one of the two
officials contesting the Commission's findings.<br>
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At the local government level, the police are often treated as an
instrument of the administration, and police chiefs often allow
themselves to be used for political and personal purposes. Nothing is
more damaging to the public's trust in government. This ranges from
fixing parking and speeding tickets for administration officials and
their friends and families, which is considered so common it's hardly
objectionable, to getting involved in coverups and in attacks on
perceived enemies, as in this case.<br>
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The second issue is the use by politicians of government lawyers for
personal or political purposes. There is nothing wrong with employing
private lawyers to deal with personal or political matters, but it
appears that the Spitzer Administration made use of government lawyers
for this, and like the police superintendent, they were happy to oblige.<br>
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The Times article points out one egregious example of a government
lawyer helping to protect the governor and his aides from the
Commission on Public Integrity's investigation.<br>
<p>In one e-mail message included in the
report, Sean Patrick Maloney, an administration lawyer, noted to David
Nocenti, Mr. Spitzer’s former counsel, and other colleagues that
investigators had not yet thought to ask for e-mail from administration
officials’ personal accounts. Mr. Maloney recommended that in their
first response to a request for documents, Mr. Spitzer’s counsel
include “a key adjective.” He suggested writing that “we have searched <span class="italic">chamber</span> records and produced herewith those <span class="italic">chamber</span> items responsive to your request,” to
avoid being accused by investigators of not fully responding to their
request at a time when the administration did not yet have access to
aides’ personal e-mail. </p>
<p>Nearly all of Mr. Spitzer’s e-mail
messages included in the report appear to have been sent from a
personal account.<br>
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It should be some sort of clue to a government attorney that the person he is advising is an official's private lawyer. Advice to an official's private lawyer will usually be private advice and, therefore, outside and possibly in conflict with the government attorney's duties.<br>
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<p>The government lawyer is not one of those charged by the Commission.
It is not considered unethical for a government lawyer to provide
advice that goes against the clear public interest of having the
Commission on Public Integrity have immediate access to the documents
it requires for its investigation. Government lawyers are expected to
work for those who hired them, even if those who hired him are acting
to protect themselves personally. This is no more right than having a
police superintendent help officials get the dirt on other officials.<br>
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<p>Government ethics should provide better guidelines to government
lawyers, officials, and employees about when they should say, "No, this is not what
I was hired to do." There need to be clearer boundaries between public
and private work.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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