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A New Local Ethics Program's First Matter Raises Some Important Issues
Tuesday, July 15th, 2014
Robert Wechsler
An
excellent editorial yesterday by Dan Barton, 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, 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 Since she was on the board, she should have withdrawn from participation in this matter.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. 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-Retired, City Ethics
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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, 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. 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-Retired, City Ethics
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Comments
john masterson (not verified) says:
Tue, 2014-07-15 12:30
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I am surprised that none of the comments here or in the referenced newspaper comment on the forming of the ethics law in the first place, when in was put in place (2013), who the alderpersons were who passed it (the current common council) or how it is that there is no place for questioning the people on the ethics board and why they are appointed by and serve at the pleasure of the mayor.
It is most unsettling to see a legislative body create a rule just ripe for abuse and then appear impotent in the face of the damage their poor legislation has wrought.
In this nation of laws, the laws have been followed... there really can be no complaint about the outcome.
And none have called the members of the ethics board to explain their reasoning, show their work. All seem to be content to point out the problems and offer nothing to solve them.
Robert Wechsler says:
Tue, 2014-07-15 12:58
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In defense of the Common Council, neither the state's General Municipal Law nor the 2011 NYS Bar Association report calls for ethics boards to be selected by community organizations or by anyone else who is not under the ethics board's jurisdiction. Community selection is a trend and a best practice, but it is not widely recognized. Therefore, the Common Council and its advisers most likely acted in ignorance of this alternative. Now that they know about the alternative, it will likely be discussed and, hopefully, instituted. Perhaps it will start a trend in New York State.
Visitor (not verified) says:
Tue, 2014-07-15 15:29
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Is there any other case where the entire ethics board is appointed and serves at the pleasure of just one person? And how slow the council is to act on rectifying the problem... some of the council have observed the ethical lapse. None of the council has recognized their own power in the matter.
This is not to say that Mayor Gallo has not missed an opportunity to be himself gracious... and still unanswered: if the broad Kingston community cares at all, what side might they actually come down on... it is likely that this mayor will be selected to serve again: he has one helluva fine record of accomplishments for Kingston, and there is no doubt that his job as mayor completely occupies his life and passions, and his hours.
Finally, just what does the Bar Association say should serve on the ethics board. As we see in police matters, police are very unsettled by unsympathetic or even hostile civilian revue boards... recently, was it Pittsburg? a cop killer was memorialized by his people and no kind words for the 23 year old cop that was executed... that's not where you want to pick your ethics review board...
And find this, too: "However, since boards of ethics are creations of and carry out their functions based on statutory direction, they clearly constitute “public bodies” required to comply with the Open Meetings Law."
Methinks you are too kind to our legislative body... I don't think there needs to be law to compel them to be thoughtful... "but maybe ...." (re Louis CK)
Happy to see cityethics.org.... here is a place you might really weigh in on and follow to a model conclusion...
Robert Wechsler says:
Tue, 2014-07-15 16:13
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§18.808(1) of the General Municipal Law of New York state provides that "The members of such board of ethics shall be appointed by such governing body..." The NYS Bar Association did not make a recommendation with respect to the selection process, but only with respect to who should be on an ethics board. Therefore, it should not have been the mayor, but the Common Council that appointed the ethics board members. If the Common Council did not make the appointments, then it coudl be argued that the ethics board was not properly constituted and its decision of no meaning.
But the Common Council does not have to select ethics board members. It could ask a group of community organizations to make selections, who would be appointed by the Common Council.
There are, however, many local governments that allow the mayor to select ethics board members. Often the selections are approved by the local legislative body, but not always. This is common, but not considered a best practice.