Making the Private Misconduct of Public Servants Public

Anonymous

Tue, 09/06/2011 - 04:49

City Related

The situation where New York City's mayor misrepresented the reason
for the resignation of one of his deputy mayors in order to protect
his privacy regarding a domestic dispute raises some interesting
issues about transparency, favoritism, and the extent to which the
private should be made public.

According to <a href="http://www.nytimes.com/2011/09/05/nyregion/bloomberg-wont-apologize-for…; target="”_blank”">a
New York Times article this weekend</a>, the deputy mayor had a
domestic dispute with his wife that led her to call the police. He
was arrested because the law is that an arrest has to be made in
this situation, but the arrest was made over the wife's protest, she
did not press charges, and the extent of the violence against her
was a shove. 
 
Because the deputy mayor oversaw the city's uniformed departments,
and presumably because he had been involved in other, public controversies in the past,
the mayor asked his deputy to resign, and he did. But they chose not
to disclose the immediate reason for the resignation. 
 
The Manhattan Borough president, a possible mayoral candidate, said
that the mayor's "first obligation is to protect the public, not to
protect a staff member.” 
 
The Public Advocate, also a possible mayoral candidate, said, “With
some employees, [the mayor] parades the fact that they are arrested
very publicly, and when one of his handpicked aides is arrested, he
is silent. It’s a form of elitism. His handpicked employees get
special treatment." 
 
The mayor was accused of a cover-up. And a New York Daily News
editorial said that the mayor "owed New York the full explanation
for his deputy’s departure, for the sake of the historical record
and to enable the public to judge the quality of the mayor’s staff
picks.” 
 
Tellingly, of the people quoted, only Susan Lerner, the head of Common Cause New York, weighed the issues. She
said that the mayor faced “a tricky situation,” given that the deputy mayor had not been charged with a crime. “I don’t think you need
to necessarily say what happened,” she said. However, she added,
“It’s never, to us, a good idea to misrepresent to the public, even
with the motives of trying to prevent a trial by the media.” 
 
Loyalty 
There is no doubt that Mayor Bloomberg is overly loyal to his
appointees, and that this loyalty is not in the public interest. But
the loyalty in most cases is in backing individuals or behavior that
are wrong for the job. The deputy mayor's behavior had nothing to do
with his job. It just looked bad because of his job. 
 
Here the loyalty was part of conduct (demanding the deputy mayor's resignation) that could be considered not irresponsible, like sticking to his choice for school chancellor, but rather
overly responsible. I say "overly responsible," because there had been no crime, the arrest was
purely automatic, and there has not been any accusation of serious
domestic violence. The mayor could have ignored the misconduct totally or, best for him, announced
that he would not countenance any domestic violence among public
servants. This would have gained him enormous respect, even though
there apparently was little or nothing in the way of domestic
violence. So this is not a case where a mayor was in any way acting
to benefit himself. 
 
Clearly, if he was trying to benefit the deputy mayor, he made a
poor decision, and the deputy mayor agrees that it would have been
better to have disclosed what happened. 
 
Putting the Public First? 
There was another alternative. The mayor could have said
that he asked for the deputy mayor's resignation because of past
conduct in his job and because there were personal issues that he
did not think it right for him to discuss publicly, because they had
nothing to do with the deputy mayor's job. As the deputy mayor said, it was really
up to him to decide what to disclose, not the mayor. This would have let the public know there was personal misconduct that affected his choice, and also said to the public that the details of the misconduct really aren't any of its business. Instead, the mayor could have focused on the mistakes the deputy mayor made in his job, which are certainly the public's business. 
 
I do not agree with the borough president that a mayor should always
put protecting the public ahead of protecting a staff member. This
is most true when it comes to job performance, but it's worth noting
that job performance evaluations are not considered public records.
If the borough president really believes what he says, he will
demand that the law be changed to make all performance evaluations
public. If we're not willing to do this, then why do we expect private conduct to be made public? This doesn't make sense. 
 
The Case with Ethics Allegations 
To hide allegations of ethical misconduct from the public is more wrong than
hiding allegations of a domestic dispute, because an ethics violation is misconduct
at the public's expense and a domestic dispute is not. And yet it is
the law in most jurisdictions that an ethics complaint, unlike an
arrest relating to a domestic dispute, is confidential until an
investigation is made and probable cause is found. Once again,
neither the borough president, nor anyone else, is calling for
bringing more transparency to the ethics process. 
 
The fact is that most of these people don't mean what they say. They
are just grandstanding, simplifying a complex issue in order to look
like they're concerned about the public. They are acting in their
personal interest in a way that confuses an important issue for the
public. And they will not provide the apology they demand of the
mayor. 
 
Private Misconduct Is More Exciting 
The issue of private behavior and transparency is an important and
problematic one. One of the things that complicates it is the fact
that the public gets more upset by private misconduct than by public
misconduct. A study of the effect of misconduct allegations on
voting found that "Campaign and
conflict of interest violations produced losses [for those accused
of these violations] on the order of 1% of the expected vote, while
bribery charges led to losses of about 12%. Members charged with
morals offenses suffer the most: they lost more than 20% of their
expected vote.” (Dennis F. Thompson, <a href="http://www.amazon.com/Ethics-Congress-Individual-Institutional-Corrupti…; target="”_blank”">Ethics in Congress: From Individual to
Institutional Corruption</a>). 
 
One reason for this is that private misconduct is more exciting.
Voting with a conflict can't raise most people's emotions as much as
domestic violence or an extramarital affair. But another reason is
that our government leaders and the news media make little effort to
explain why voting with a conflict, not to mention accepting a
bribe, is worse than an extramarital affair. 
 
Favoritism 
The other issue here is favoritism, but even this is being overly
simplified. It is only being applied to the mayor, who allegedly
has publicized the arrests of public servants that he did not
appoint (this is according to the public advocate, who apparently
gave no example of this). Assuming it is true, it is wrong.
Appointees should not be treated different from other officials. If
anything, the appointing authority should be harder with them, since
the appointing authority is directly responsible for their behavior. 
 
But the real favoritism issue is bigger than the mayor's loyalty to
his appointees. If we truly want public servants' misconduct, both
private and public, to be available to the public at the moment of
arrest or complaint, we need to make major changes in our laws. And
we need to take into account the effect this will have on
individuals considering public service. 
 
Mayor Bloomberg did not create the culture we have of fascination
with private misconduct and, for the most part, very poor handling
of public misconduct. What he did could lead to a discussion of the
bigger issues. But most likely it will not. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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