The Tough Way to Revive a Moribund Ethics Commission

What do you do when an ethics commission is moribund? Sadly, few people know and few people care. That is the norm. Rarely does an official complain publicly, "I have no one to give me good ethics advice." She just goes to the city or county attorney, or makes the decision herself. Rarely does anyone complain that there is no ethics training or nowhere to file an ethics complaint. And certainly no official complains that he doesn't have to file a financial disclosure form anymore.

This year, the comptroller in Erie County, NY (the county seat is Buffalo, pop. 1 million) thought of a way to make the moribund county ethics commission an issue:  investigate it and report on what he found. The report came out on Thursday.

It's not a pretty picture. Here are selections from the report's summary of findings.

• The Board is presently comprised of one member.
• The Board has no written by-laws, policies, procedures, manuals or formal guidelines.
• Board members believe the Board does not have the authority to investigate the data disclosed in Ethics Disclosure Forms.
• The Board has incomplete minutes for the years 2007 and 2009 and no minutes for 2008.
• County employees are not disclosing to the Clerk of the Legislature their interests in County contracts, as required under the Code.
• The Board reviewed only a small sample of all the Ethics Disclosure Forms for 2007, 2008 or 2009.
• There is no mechanism for persons to report conflicts of interest to the Board of Ethics.
• The Board did not issue any “Advisory Opinions” for the period of our review, nor do we have any evidence that any were requested.

Its even worse than this. In the summer of 2009, the three remaining members of what should be a six-member board of ethics asked the county executive to nominate new members. He had nominated one in 2008 and another in May 2009, but neither was confirmed by the county legislature. Meanwhile, the term of one member expired, while another resigned, leaving one member, who continued to ask for new members to be nominated. The result is that the board cannot get a quorum and, therefore, cannot function.

Here's what the county executive's communications director said in response to the report, according to an article in the Tonawanda News:  “The Erie County Board of Ethics is a properly constituted board and any vacancies will be filled by the County Executive in a timely fashion." Hopefully they will.

According to an article in the Buffalo News, the only remaining ethics board member is forgiving: “I don’t think there is any conspiracy. It’s just neglect.”

Neglect is often the reason for a moribund ethics commission. But not in Erie County. This spring, the comptroller asked for disclosure forms and other materials and information in order to write his report, and the county attorney said he had no authority to conduct a review of the ethics board (the comptroller's office had conducted such a review in 1980). Then the comptroller sought to subpoena the information, he was refused, and he went to court. The county executive, personnel department, and ethics board chair (whose term had run out in 2009) fought the subpoenas in court. That does not sound like neglect to me.

According to an article on the WNY website from May 28, the comptroller won the action and obtained most of the information necessary to write the report.

It also doesn't sound like neglect for the county executive to fail to nominate new members after the comptroller made it a big issue. Yes, this is probably an attempt to embarrass the county executive for political purposes, but he deserves it. And the county attorney should not help keep the ethics board inactive with specious technical arguments about whether it's just an advisory board.

Nor is it neglect to fail to have any information about ethics on the county website:  no page for the board of ethics, no ethics code, no rules and regulations, just directions for filing the annual disclosure form, which is the only active part of the county's ethics program in a county of one million people. This is the fault of the county executive and the county legislature, neither of which, it seems, wants to be held accountable. Hopefully, the comptroller report will do that.

Robert Wechsler
Director of Research-Retired, City Ethics

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