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Poor Draftmanship and Poor Ethics
Sunday, July 11th, 2010
Robert Wechsler
Note: I completely rewrote this post after Mark Davies set me straight about the state law on which disclosure forms an official must file.
Poor draftsmanship of ethics codes can cause serious ethical problems. This is certainly true of New York Municipal Law §811(1)(b), which put Suffolk County (NY) executive Steve Levy in a very uncomfortable position. Levy didn't handle the matter well himself, but he shouldn't be harassed based on poor ethics code draftsmanship.
How bad is the draftsmanship? According to a Newsday article, local experts insisted that the county executive was required to file both a state and a county disclosure form. Anton Borovina, the first counsel to the county EC, who helped draft the county ethics law, said, "The Suffolk County ethics law applies to him, and the Suffolk County ethics code requires all employees to file disclosure forms that include information about the spouse, P-E-R-I-O-D."
Robert Gottlieb, a Suffolk lawyer who chaired the committee that drafted the county ethics code, said Levy is required to file the county form and disclose his wife's business connections.
Counsel to the county legislature wrote a memo to a member of the county legislature saying that there is no basis for Levy's position.
And I agreed. At least until Mark Davies, executive director of the New York Conflicts of Interest Board and Fordham Law School professor, set me straight (I contacted him because the county executive had turned to him for his opinion, and I greatly respect Davies' opinions).
The difference in interpretation arose from two problems. First, the state Municipal Law paragraph on which the chief deputy county executive based his opinion memo, §811(1)(b), involves local party officials. It doesn't appear to be relevant to elected officials.
What makes it relevant to elected officials is that an exception to the local party official disclosure rule allows any "person" subject to "this subdivision" to satisfy the requirements of the "subdivision" by filing only the state disclosure form. All this in what appears to be an exception to the rule for local party officials.
The trick is that it says "subdivision," which refers to §811(1), rather than "paragraph," which would have referred to §811(1)(b). Due to the word "subdivision," an exception for government officials was inserted in a paragraph about party officials.
Suffolk County code of ethics §A30-10(B) shows the misreading of the state provision by the county drafters, who allowed only local party officials to get around the county disclosure requirements if they also had to file a state disclosure form. The Suffolk County EC refers to its own laws in allowing officials such as Levy to file state disclosure forms. However, not only does Suffolk County law not allow this, but its failure to allow this is irrelevant, because state law takes precedence.
It is rare that I don't feel extremely disappointed in myself when I make an error such as this, but this time I'm only annoyed with myself. No ethics code should require the mind of a Mark Davies to interpret it correctly. Ethics codes are there to be read by government officials and employees, not all of whom are lawyers, and certainly not all of whom are brilliant law professors. There is no excuse, I repeat, no excuse for not using clear language in an ethics code. If you can't write and organize clearly, hand the job over to someone who can.
Right on the Law, Wrong on the Ethics
The problem is only exacerbated by the attitudes of most of the people involved. Levy appears to be willing to do everything but deal responsibly with the issue of his wife's work for hospitals and law firms that have county contracts. His people can read the tortuous ethics code language the rest of us have problems with, but they cannot see the appearance of impropriety in his wife's work.
When a county contractor gives business to the wife of the county executive, it looks like favoritism at least, or pay-to-play at worst, no matter how long she may have worked for the companies, no matter what other mitigating factors there may be. There is no getting around this, no excuses, and there need be no laws dealing with the situation.
Disclosure, whether required or not, is the first step in dealing with this apparent conflict. Then it's time to talk about the next step. Any attempt to hide the facts is essentially an admission that there is something to hide. Focusing on laws is the wrong thing to do. You can be right, as Levy is about disclosure, but wrong in your handling of the conflict.
Levy and others handled other aspects of this matter wrong, as well. After being subpoenaed by the district attorney, Levy did file county disclosure forms, and yet he still didn't disclose all of his wife's company's work for county contractors. And then, according to an article in the Village Tatler, he issued a press release viciously and personally attacking a Newsday reporter for being wrong about the disclosure issue, even though so many others were wrong, as well, and even though he still refuses to deal responsibly with the matter himself.
Back in 2005, his wife asked the county EC whether she could do work for a hospital doing business with the county, and was told this would be okay. Although the opinion said it was "specifically limited" to hospitals, Levy said it also applied to law firms.
A question arose, in 2008, about the wife's work for law firms that did work for the county. In response, the county attorney wrote a letter to such law firms "stating that [the wife's company] was not on any list of court reporters that could be chosen by the county or its outside counsel for stenographic service. The letter did not specifically address her firm's work for these businesses on noncounty related business." The office that monitors county contracts said it did not receive a copy of the letter. The letter seems not to have made any difference.
One Suffolk County attorney did do the right thing in this matter, at least as far as he tells it. A former chief deputy to Levy says that he told Levy his wife should not be taking the contracts at all. They were legal, as the EC pointed out, but they certainly give the impression of pay-to-play (you want money from the county, you hire my wife's company), and this is not a good impression to give.
Robert Wechsler
Director of Research-Retired, City Ethics
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Poor draftsmanship of ethics codes can cause serious ethical problems. This is certainly true of New York Municipal Law §811(1)(b), which put Suffolk County (NY) executive Steve Levy in a very uncomfortable position. Levy didn't handle the matter well himself, but he shouldn't be harassed based on poor ethics code draftsmanship.
How bad is the draftsmanship? According to a Newsday article, local experts insisted that the county executive was required to file both a state and a county disclosure form. Anton Borovina, the first counsel to the county EC, who helped draft the county ethics law, said, "The Suffolk County ethics law applies to him, and the Suffolk County ethics code requires all employees to file disclosure forms that include information about the spouse, P-E-R-I-O-D."
Robert Gottlieb, a Suffolk lawyer who chaired the committee that drafted the county ethics code, said Levy is required to file the county form and disclose his wife's business connections.
Counsel to the county legislature wrote a memo to a member of the county legislature saying that there is no basis for Levy's position.
And I agreed. At least until Mark Davies, executive director of the New York Conflicts of Interest Board and Fordham Law School professor, set me straight (I contacted him because the county executive had turned to him for his opinion, and I greatly respect Davies' opinions).
The difference in interpretation arose from two problems. First, the state Municipal Law paragraph on which the chief deputy county executive based his opinion memo, §811(1)(b), involves local party officials. It doesn't appear to be relevant to elected officials.
What makes it relevant to elected officials is that an exception to the local party official disclosure rule allows any "person" subject to "this subdivision" to satisfy the requirements of the "subdivision" by filing only the state disclosure form. All this in what appears to be an exception to the rule for local party officials.
The trick is that it says "subdivision," which refers to §811(1), rather than "paragraph," which would have referred to §811(1)(b). Due to the word "subdivision," an exception for government officials was inserted in a paragraph about party officials.
Suffolk County code of ethics §A30-10(B) shows the misreading of the state provision by the county drafters, who allowed only local party officials to get around the county disclosure requirements if they also had to file a state disclosure form. The Suffolk County EC refers to its own laws in allowing officials such as Levy to file state disclosure forms. However, not only does Suffolk County law not allow this, but its failure to allow this is irrelevant, because state law takes precedence.
It is rare that I don't feel extremely disappointed in myself when I make an error such as this, but this time I'm only annoyed with myself. No ethics code should require the mind of a Mark Davies to interpret it correctly. Ethics codes are there to be read by government officials and employees, not all of whom are lawyers, and certainly not all of whom are brilliant law professors. There is no excuse, I repeat, no excuse for not using clear language in an ethics code. If you can't write and organize clearly, hand the job over to someone who can.
Right on the Law, Wrong on the Ethics
The problem is only exacerbated by the attitudes of most of the people involved. Levy appears to be willing to do everything but deal responsibly with the issue of his wife's work for hospitals and law firms that have county contracts. His people can read the tortuous ethics code language the rest of us have problems with, but they cannot see the appearance of impropriety in his wife's work.
When a county contractor gives business to the wife of the county executive, it looks like favoritism at least, or pay-to-play at worst, no matter how long she may have worked for the companies, no matter what other mitigating factors there may be. There is no getting around this, no excuses, and there need be no laws dealing with the situation.
Disclosure, whether required or not, is the first step in dealing with this apparent conflict. Then it's time to talk about the next step. Any attempt to hide the facts is essentially an admission that there is something to hide. Focusing on laws is the wrong thing to do. You can be right, as Levy is about disclosure, but wrong in your handling of the conflict.
Levy and others handled other aspects of this matter wrong, as well. After being subpoenaed by the district attorney, Levy did file county disclosure forms, and yet he still didn't disclose all of his wife's company's work for county contractors. And then, according to an article in the Village Tatler, he issued a press release viciously and personally attacking a Newsday reporter for being wrong about the disclosure issue, even though so many others were wrong, as well, and even though he still refuses to deal responsibly with the matter himself.
Back in 2005, his wife asked the county EC whether she could do work for a hospital doing business with the county, and was told this would be okay. Although the opinion said it was "specifically limited" to hospitals, Levy said it also applied to law firms.
A question arose, in 2008, about the wife's work for law firms that did work for the county. In response, the county attorney wrote a letter to such law firms "stating that [the wife's company] was not on any list of court reporters that could be chosen by the county or its outside counsel for stenographic service. The letter did not specifically address her firm's work for these businesses on noncounty related business." The office that monitors county contracts said it did not receive a copy of the letter. The letter seems not to have made any difference.
One Suffolk County attorney did do the right thing in this matter, at least as far as he tells it. A former chief deputy to Levy says that he told Levy his wife should not be taking the contracts at all. They were legal, as the EC pointed out, but they certainly give the impression of pay-to-play (you want money from the county, you hire my wife's company), and this is not a good impression to give.
Robert Wechsler
Director of Research-Retired, City Ethics
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