making local government more ethical

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

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 my blog post). 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
The Suffolk grand jury report 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 the best practice of having community organizations select 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 Seattle's Administrative Rules:
    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:

      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.

    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.

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 added an ex parte provision to the Model Code, 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 an article in yesterday's Newsday.

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, City Ethics