Grand Jury Report on Manipulation of the Suffolk County (NY) Ethics Commission

Anonymous

Fri, 04/20/2012 - 06:23

County Related

For the second time in a year, a local ethics commission has been
the subject of a grand jury report. The first was San Francisco's
(see <a href="http://www.cityethics.org/content/civil-grand-jury-report-san-francisco…; target="”_blank”">my
blog post</a>). There, it was a civil grand jury and the focus was
on the commission. Here and now, it is a criminal grand jury, and
the focus is on the county executive and other officials, as well as
ethics commission members. The county is Suffolk, on Long Island, a
suburban county of 1.5 million people. 
 
The Need for an Independently Selected Ethics Commission 
<a href="http://www.scribd.com/doc/90075543/Suffolk-County-Ethics-Commission-Gra…; target="”_blank”">The
Suffolk grand jury report</a> shows an extreme example of what
happens when ethics commission members are selected by high-level
officials in a poor ethics environment. This worst case was one of
ongoing secret, political interference in ethics commission matters
and ongoing political warfare that placed the ethics commission
right in the middle between the two front lines.

If any local government official can read this report and still
insist that officials are the right people to select ethics
commission members (as opposed to <a href="http://www.cityethics.org/node/770" target="”_blank”">the best practice of
having community organizations select</a> the members), they are
in denial of the fact that such abuse could occur in their
community. 
 
In any event, it is not the actual fact of manipulation of an ethics
commission that matters. It is the public's perception that
individuals selected by high-level officials are going to do what
the officials want, especially when the officials, their allies, and
their opponents are before the commission. Reports of what happened
in Suffolk County can only increase this perception. 
 
The Need for an Ex Parte Communication Provision 
Another thing that can be learned from what happened in Suffolk
County is that ethics codes or regulations should have a provision
that prohibits ex parte communication with ethics commission
members, and provides guidance to commission members with respect to
handling such communications. Here is a very complete provision from
<a href="http://clerk.ci.seattle.wa.us/%7Escripts/nph-brs.exe?s1=&s3=309063&s2=&…; target="”_blank”">Seattle's
Administrative Rules</a>:<ul>

T. Ex Parte Communications

 1. A member of the Commission may not communicate, directly or
indirectly, regarding any issue in the proceeding other than
communications necessary to procedural aspects of maintaining an
orderly process with any party or any person employed by the
agency
without notice and opportunity for all parties to participate,
except
as provided in this subsection:
<ul>
 a. Any Commission member may receive aid from legal counsel
who have not participated in investigation or prosecution;

 b. Commission members may communicate with other employees or
consultants of the agency who have not participated in the
proceeding
in any manner, and who are not engaged in any investigative or
prosecutorial function in the same or a factually related case.</ul>
 2. Unless required for the disposition of ex parte matters
specifically authorized by statute or unless necessary to
procedural
aspects of maintaining an orderly process, a Commission member may
not communicate, directly or indirectly, regarding any issue in
the
proceeding, with any person not employed by the agency who has a
direct or indirect interest in the outcome of the proceeding,
without
notice and opportunity for all parties to participate.

 3. Unless necessary to procedural aspects of maintaining an
orderly process, persons to whom a Commission member may not
communicate under subsection 1 and 2 of this section may not
communicate with presiding officers without notice and opportunity
for all parties to participate.

 4. If, before serving as a Commission member in an adjudicative
proceeding, a person receives an ex parte communication that could
not properly be received while serving, the person, promptly after
starting to serve, shall disclose the communication in the manner
prescribed in subsection 5 of this section.

 5. A Commission member who receives an ex parte communication in
violation of this section shall place on the record of the pending
matter all written communications received, all written responses
to
the communications, and a memorandum stating the substance of all
oral communications received, all responses made, and the identity
of
each person from whom the Commission member received an ex parte
communication. The Commission member shall advise all parties that
these matters have been placed on the record. Upon request made
within ten days after notice of the ex parte communication, any
party
desiring to rebut the communication shall be allowed to place a
written rebuttal statement on the record. Portions of the record
pertaining to ex pate communications or rebuttal statements do not
constitute evidence of any fact at issue in the matter unless a
party moves the admission of any portion of the record for
purposes
of establishing a fact at issue and that portion is admitted.

 6. If necessary to eliminate the effect of an ex parte
communication received in violation of this section, a Commission
member who receives the communication may be disqualified, and the
portions of the record pertaining to the communication may be
sealed
by protective order.</ul>

The grand jury recommended that attempts to influence an ethics
commission members should be made a felony. This is both overkill
and underkill. It is overkill because it turns this misuse of
office, an ethics violation, into a felony, and because it brings
the criminal justice system into an ethics program, politicizing
the program in the name of dealing with what is often, as it was here, a
political problem. An independent ethics commission can deal with
this problem itself. It is better to prevent the conduct and
provide guidance to an ethics commission about how to deal with
it, than it is to turn an ex parte communication into a difficult
criminal case, where someone who is no danger to society, only to
good government, may end up in prison. 

It is underkill because, without a sting operation, it is
difficult to prove beyond a reasonable doubt that an official
actually did something criminal. On the other hand, it is very
easy to prove in an administrative ethics proceeding that an
official made an ex parte communication. Often what appears to be
tough justice is really an act that makes successful prosecution
difficult. This sort of justice goes against the goal of a
government ethics program to make prosecution relatively quick,
inexpensive, and successful. 

The City Ethics Model Code only raised the issue of ex parte
communications in a comment. The Suffolk County situation makes it
clear that such a provision belongs in an ethics code. Therefore,
I have <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC75…; target="”_blank”">added
an ex parte provision to the Model Code</a>, basing it on
Seattle's, but making it applicable to smaller jurisdictions. It
also goes beyond the Seattle's disclosure requirement to make ex
parte communication an ethics violation, since it is a misuse of
office to benefit oneself. In most cases, disclosure will be
sufficient. But in cases such as Suffolk County's, the finding of
a violation, and penalties, would be appropriate. 
 
More on the Grand Jury Report 
The 56-page grand jury report provides a
communication-by-communication history of the county executive's
attempts to manipulate the ethics commission to do his dirty work
and protect him from complaints against him. The report gives all
officials a letter instead of a name, but those who prefer names
can find out who everyone is <a href="http://www.newsday.com/long-island/suffolk/breaking/grand-jury-steve-le…; target="”_blank”">an
article in yesterday's Newsday</a>. 
 
Besides the selection of ethics commission members by high-level officials, the other principal problem with Suffolk County's ethics program was the involvement of
the county attorney's office. Its members both drafted complaints
for officials and advised the ethics commission. The report provides
more evidence of why local government attorneys should be kept
totally out of an ethics program. 
 
In addition, one government attorney hired by the executive branch to advise the ethics
commission worked only on a part-time basis, but was given the benefits of a full-time employee. This
was seen by the grand jury as the executive branch impairing the attorney's (and hence the ethics commission's) independence
and creating an appearance of impropriety through preferential
treatment. An ethics commission, and no one else, should hire its
own counsel and determine counsel's hours, pay, and benefits. 
 
The grand jury report also includes an in-depth history of Suffolk
County's ethics program. This alone is worth the read. 
 
Finally, the grand jury report makes recommendations, some of them
reasonable, some of them not. One valuable observation it makes is
that a three-member ethics commission, such as Suffolk County's, is
easier to manipulate than a larger body. I have always opposed
three-member ethics commissions. This is yet another reason why they
are a bad idea. 
 
Another interesting recommendation is to place limits on ethics
proceedings, timewise. This is due to the fact that the county
executive managed to keep an ethics proceeding alive for years in
order to keep it hanging over an opponent legislator's head. 
 
Finally, the grand jury recommended that ethics commission members
be trained. It is amazing how few receive any meaningful training.
This is a crime worthy of felony prosecution! But instead of prison, the sentence should be two weeks of forced continuous watching of the worst government ethics video ever made. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
203-859-1959

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Grand Jury Report on Manipulation of the Suffolk County (NY) Ethics Commission

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