The Real-Life Results of a Lack of Independence and Transparency in an Ethics Program

Last week, I wrote blog posts about how Chicago's ethics program needs more independence and more transparency than the Ethics Reform Task Force recommended. I couldn't have imagined better evidence to support my criticisms than what has been happening recently with the New York state Joint Commission on Public Ethics (JCOPE). The goings-on there show how a lack of independence combined with too much secrecy can make an ethics commission open to attacks that undermine its credibility.

According to an article in the Democrat & Chronicle, a JCOPE member resigned on Friday evening, soon after criticizing his commission. He set out two principal reasons for his resignation. One was a particular decision of the board: to keep secret the names of lobbying organizations’ big donors, including donors to one organization that has thrown a great deal of support behind the governor's policies. The commission decided that only from July 1 would disclosure be required, protecting from disclosure six months of contributions, and those who gave them.

The second involves confidentiality. As the former member said in an e-mail included in an Albany Times Union Capitol Confidential blog post on Friday, "JCOPE needs disinfectant sunshine because confidentiality may have become a cloak for possible willful illegality operating with a 'nod and a wink' means of communication from within JCOPE to a chosen few for political gain and corrupt back-scratching."

A different ethics matter is involved here:  the decision of JCOPE not to investigate what the New York Times refers to as "the use of public money by the Assembly speaker ... to finance a confidential settlement with two women who said they were sexually harassed by Assemblyman Vito J. Lopez" (who happens to be the subject of a recent City Ethics blog post that focuses on other misconduct).

Of course, these may be off-the-wall accusations, but the problem is that everything at JCOPE is politicized, and the answer to most questions is "No comment." Three of its members are selected by the senate majority leader, and those three alone can block any investigation (other members are selected by the governor and other legislative leaders). According to the Capitol Confidential blog post, most of JCOPE's senior staff used to work for the governor when he was New York's attorney general. Therefore, both member and staff decisions can be questioned on political grounds.

When an ethics commission decides not to investigate someone who selected three of its members, this creates a crisis of confidence. Considering that this is JCOPE's first important decision, it is disastrous.

While the governor and legislative leaders are publicly supporting a full investigation by JCOPE, the Times article says that "some of the legislative appointees, from both political parties, had concerns about having a commission dominated by a governor’s appointees look into the internal workings of the Legislature." But that's its job.

Either Independence or Jurisdiction
If it can't be trusted to do this (and it can't), then there are only two solutions. One, JCOPE's members must be selected not by legislative leaders and the governor, but by community organizations and associations. Or two, JCOPE must give up authority over those who select its members, their staff, and possibly their colleagues and appointees. In other words, if an EC is not willing or able to investigate those under its jurisdiction, due to the selection process, then either the selection process has to change or the EC's jurisdiction has to change. If the jurisdiction changes, then the ethics program will only apply to lower-level officials and employees, who will feel that the ethics program is unfair. The public will think the ethics program is toothless. So why have one at all?

This is how important independence is. When the head of Common Cause New York says, "This confirms the worst fears which Common Cause New York and others have had, that the commission is set up in a way that encourages gridlock designed to protect powerful elected officials," who's to say she's wrong? Or, more to the point, who will believe those who say she's wrong?

Secrecy = Leaks + Rumors + Denials + Closed Meetings
As for "confidentiality," which I prefer to call "secrecy," it has led to leaks and denials, and a great deal of controversy. A Cuomo spokesman has said that reports of a limited investigation are just rumors, but what else can there be but leaks and rumors when an ethics proceeding is confidential. Even the JCOPE member who resigned said that he can't provide any details regarding his criticisms, because he is sworn to secrecy. So we don't know how just his accusations are. How is secrecy protecting the assembly speaker? And what is it doing to increase public trust in government? Nothing.

JCOPE was scheduled to have a public, webcast meeting this morning, but the only item on the agenda is an executive session on a topic not provided (a topic is required in many states). Why webcast people waiting for a closed meeting to end?

A Lose-Lose Proposition
After seeing the ramifications of JCOPE's selection process, why would any government choose one like this? When serious issues arise, the selection process gets in the way. A selection process dependent on high-level officials makes many important EC decisions look preferential to their appointing authority and their allies, or it allows high-level officials to replace members who don't support them, or it allows them to leave the EC without members (or without a sufficient budget), so that it cannot function. None of these should ever occur.

The governor and legislative leaders can say they want a full investigation all they want, but the problem is all their doing. They can rail at rumors, but it's their choice to let rumors prevail instead of a transparent ethics program. They set up a system where any decision on an investigation of them or those close to them will not gain the confidence of the public unless it deals with them severely. In other words, the selection of EC members by officials is a lose-lose proposition for officials as well as for the public. New York's high-level officials need to set up an ethics program that is completely independent of them. And much more limited in its use of confidentiality.

For more on JCOPE and confidentiality, see my May 2012 blog post.

Robert Wechsler
Director of Research-Retired, City Ethics

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