Making the Private Misconduct of Public Servants Public

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 New York Times article this weekend, 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, Ethics in Congress: From Individual to Institutional Corruption).

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

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