Beyond the Criminal Enforcement Paradigm: Dealing with Unwritten Rules
I have written about the need for ethics commissions to go beyond
the criminal enforcement paradigm, which limits commissions to determining whether an
individual respondent has violated an ethics provision or not. It is hard to find instances of a commission looking at the bigger picture, that is, at the common practices and unwritten rules that underlie an individual's ethical misconduct. I
read about such an instance <a href="http://www.nytimes.com/2012/04/03/nyregion/state-report-clears-luis-a-g…; target="”_blank”">in
the New York <i>Times</i> yesterday</a>.<br>
<br>
The commission is the New York State Commission on Judicial Conduct.
<a href="http://www.scjc.state.ny.us/Publications/GonzalezPublicReport.htm" target="”_blank”">The
commission's report on Judge Luis Gonzalez</a>, dated March 30,
dismisses three of four charges against the judge. As for the fourth
charge, regarding nepotism in hiring, the commission goes beyond the
judge's conduct to look at common practices among judges with respect
to hiring for administrative positions.<br>
<br>
What the commission found was that vacancies for administrative jobs
typically have been posted not in advertisements or on the court
website, as is otherwise the process, but only in internal rooms at
the courthouse that are not accessible to the public. This unwritten
rule seriously favored the relatives and friends of those already
employed by the court system. This had been the common practice
for decades before charges were brought against one particular
judge.<br>
<br>
Some judges, including Judge Gonzalez, took hiring out of the hands
of the Clerk of Court and into the hands of the judge's executive
assistant. This also meant that no hiring panel would be involved.<br>
<br>
The judge's principal defenses were (1) everybody does it and (2)
all the people hired were qualified.<br>
<br>
So the commission looked into what everybody else was doing. It
turned out that everybody wasn't doing the same thing as Judge
Gonzalez' division. At least one appellate division adopted a
detailed written hiring protocol (a formal process, which is what
every office should have) that requires job openings to be announced
via the Office of Court Administration website, and requires the formation of a committee
to interview and recommend candidates. At least two of the
four departments have “employment opportunities” pages on their
individual websites.<br>
<br>
The commission made detailed recommendations after more generally
recommending that the chief judge and others responsible
"collectively examine the hiring practices of the Appellate
Divisions, capitalize on existing strengths, devise uniform and more
comprehensive guidelines for judges and court employees in order to
promote merit and avoid even the appearance of nepotism and
favoritism, and adopt more uniform hiring and employment protocols."
Two of the detailed recommendations involved the withdrawal from participation in hiring of employees
with relationships to job candidates, and a nepotism rule relating to
supervisors and subordinates.<br>
<br>
There is no reason that a local ethics commission cannot go beyond
the individual case before it, in order to examine the history and breadth of
rules and practices that allow or lead to ethical misconduct. And
there is no reason that an ethics commission cannot include its
conclusions and recommendations either in its decision or in a
separate report.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959