Relations Between Superiors and Subordinates: Three Cases from New York City
Here are three cases from New York City that
involve relations between superiors and subordinates, one of the most
important aspects of local government ethics. What is especially interesting is that two of these cases involve co-opting, in one case of subordinates, in the other of vendors. These cases were included
in COGEL's ethics update last week.<br>
<br>
<b>Co-opting Subordinates</b><br>
<a href="http://archive.citylaw.org/coib/ED/ARCH09/Pettinato-Disposition.pdf" target="”_blank”">The
first
case</a> involves a school principal who obtained a waiver from
the New York City Conflicts of Interest Board (COIB) to act as the executive director
of a nonprofit that did business with the city, but not with the
department of education (DOE). The waiver expressly pointed out that
the principal could work for the nonprofit only at times when not
required to work for the DOE, could not use his DOE position or title
to obtain any private advantage for himself or the nonprofit, and could
not use DOE equipment, letterhead, personnel, or other city resources
in connection with the nonprofit.<br>
<br>
The principal admitted in his <a href="http://archive.citylaw.org/coib/ED/ARCH09/Pettinato-Disposition.pdf" target="”_blank”">settlement
agreement</a> with the COIB and DOE that, a few years after receiving
the waiver letter, the principal's nonprofit engaged in business
dealings with the DOE, that he used his position as principal to help a
client of the nonprofit get a job at his school, and that he
intertwined the nonprofit's operations with those of his school,
including using the school’s phone numbers and mailing address for the
organization. Most serious, the principal hired two of his DOE
subordinates to work for him at his nonprofit, knowing that neither DOE
employee had obtained the necessary waiver from the COIB, thereby
caused these subordinates to violate the law.<br>
<br>
Causing subordinates to break an ethics law, or any law, is an
extremely serious ethics violation. It is, for some unethical officials,
the best way to prevent subordinates from turning them in.<br>
<br>
<b>Co-opting Vendors</b><br>
In the second case, a former school custodian hit the jackpot, leading
to the largest fine ever imposed by the COIB ($20,000). According to
the <a href="http://archive.citylaw.org/coib/O%27Brien-Disposition.pdf" target="”_blank”">settlement
agreement</a>, the custodian admitted to having used school funds from
three school vendors for personal purchases, and then getting the
vendors to falsify invoices to conceal this personal use of funds. He
also used his staff to do work on his home, without pay, in some instances
during the time they were supposed to be working for the city.<br>
<br>
I don't know if anything was done to the vendors. They may not be under
the COIB's jurisdiction, but they certainly should be penalized for
falsifying invoices.<br>
<br>
<b>Obtaining a Subordinate's Services</b><br>
Everyone knows that a superior should not have a subordinate do
personal work for him, but this usually involves work on one's home or
running errands. In <a href="http://archive.citylaw.org/coib/AO/arch%201992/AO%2092-28.doc" target="”_blank”">a
1992 advisory opinion</a>, the COIB made it clear that this prohibition
also applies to legal representation, whether or not it is compensated
and whether or not the individuals have a personal relationship.<br>
<br>
A deputy chief administrative law judge admitted in his <a href="http://archive.citylaw.org/coib/ED/ARCH09/Keeney-Disposition.pdf" target="”_blank”">settlement
agreement</a> with the COIB that he had accepted free legal
representation in his divorce proceeding from a subordinate
administrative law judge, and that his ignorance of the advisory
opinion does not excuse his failure to comply with it.<br>
<br>
It is an issue whether officials can be expected to know about advisory
opinions, unless they are made easy to find or they are simply
clarifying what is already there in the law. In this instance, both are
true, at least partially.<br>
<br>
If one goes to the COIB website, clicks on the advisory opinion search,
and types in "representation" and "subordinate," the relevant advisory
opinion comes up. But if you type in "legal representation" and
"subordinate," the opinion does not come up. Searches are only as good
as the individual doing the search. The best thing to do is to annotate
one's ethics laws with short summaries of relevant advisory opinions,
with hyperlinks to them. Then one can expect an official to go the next
step to checking out relevant advisory opinions. I don't recall ever
having seen this done.<br>
<br>
Both the superior and the subordinate were fined, but the superior was
fined twice what the subordinate was fined. I wonder if the subordinate
would have been fined at all if he had not been an attorney, that is,
someone expected to be able to research the law.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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