An excellent editorial yesterday by Dan Barton [1], editor of the Kingston (NY) Times, raises a few important issues relating to local government ethics proceedings.

According to Barton, Kingston's new ethics board dismissed a complaint from a city alderman that the mayor had violated the ethics code by hiring as an attorney for the city's local development corporation a lawyer with whom the mayor practiced as "of counsel."

The first issue involves the ethics board's investigation. According to the board chair [2], the board did not interview anyone or even look into the meaning of "of counsel" before dismissing the complaint. However, it is possible that board members knew the mayor's position:  that he only rented space in his appointee's office.

The lack of an investigation is particularly problematic due to the second issue:  that the ethics board members were selected within the last year by the respondent mayor. Ethics boards selected by those under their jurisdiction need to go out of their way to fully investigate allegations against their appointing authority, or his allies, before dismissing these allegations.

The third issue is ethics board members' political activity. According to the editorial, the ethics board's chair is "a fervent defender of the mayor on social media." This is unacceptable. A political activist should not sit on an ethics board. Since she was on the board, she should have withdrawn from participation in this matter. Her involvement requires that the matter be reopened, as the editorial suggests.

The fourth issue is one that may seem obscure, but which I encountered in my own town:  the sometimes fluid definition of "of counsel." Barton notes that the New York City Bar Association Committee on Professional and Judicial Ethics defines it as "the existence of a close, regular and personal relationship between the attorney and the firm." Barton notes that "to lawyers, words mean things — very specific, exact and really important things." And yet some lawyers use the term "of counsel" very loosely, especially when one definition or another serves their personal purposes.

It was wrong for the mayor to have publicly ignored such evidence as, in this case, his name on the appointee's letterhead. Renters may share space on a sign (as the mayor did), but not on a letterhead. Whatever their relationship actually was, it appears to all the world that the two lawyers were more closely associated than renter and landlord.

The good thing about this case is that, especially as the ethics board's first matter, its mishandling has caught the attention of the board of aldermen and of the press. It looks likely that the small city of 24,000 will take another look at, and hopefully improve its new ethics program. The first thing it should do is change the selection process, so that community organizations rather than the mayor select ethics board members [3]. But it should do an overall review of the program, not simply tweak a couple of things here and there.

Robert Wechsler
Director of Research, City Ethics

203-230-2548