EC Member Withdrawal in a Case Involving an Appointing Authority

Note: When I originally wrote this blog post, I erroneously assumed that the ethics commission member whose conflict situation I discuss was the only one selected by the assembly speaker. I since learned that three of the members were selected by the assembly speaker. I would argue, therefore, that these three members are in the same situation (except for the personal opinion expressed about someone who would presumably be involved in the matter). With a fourteen-member commission, the withdrawal of three members from a matter would not hamper consideration of it. It might affect the partisan makeup of those considering the matter, but partisan problems like this are caused by allowing partisan officials to select EC members in the first place. The only major change I made to the post is adding a suggested, controversial way of dealing with a situation where a mayor who has selected all the EC members comes before the EC.

Three issues are raised by a short exchange in a closed session of New York State's ethics commission (JCOPE) that was accidentally webcast. According to an Associated Press article, in a case involving an aide to the speaker of the state assembly (the state's lower house), the issue arose whether the commission member appointed by the assembly speaker should withdraw from the matter.

The leader of the discussion said that it was up to the commission member whether or not to withdraw (and no one appears to have objected). He said that, in the discussion about withdrawal, the commission member "expressed her opinion that Judge Yates was someone with high ethical standards." Former judge Yates is counsel to the assembly speaker, who, according to the article, would likely be involved in the matter.

The first issue is, should an ethics commission member ever participate in a matter involving her appointing authority, or an aide to the appointing authority? If the appointing authority is an individual, either a mayor, the president of the council, a council member, or even a specific community organization, it is very damaging to trust in an ethics commission for a member to participate. If the appointing authority of the ethics commission is a body, such as the entire council, then each member should participate, because there is no direct relationship between appointing authority and EC member.

What if the mayor or the council president selects all or half the EC members? Withdrawal would prevent the EC from dealing with a complaint against or even, perhaps, giving an advisory opinion to the appointing authority. This would effectively mean that the EC would not have jurisdiction over its members' appointing authority or authorities. But the alternative is to take jurisdiction, possibly make a finding of no violation (or give an opinion allowing an appointing authority to participate, take a gift, or whatever), and lose the public's trust. By withdrawing as a group, an EC sends a message to the mayor or council president: you have created a conflicts of interest program whose overseers have been given one huge conflict of interest. The EC must deal responsibly with this conflict. By putting us in this untenable position, you have effectively removed yourself from the jurisdiction of the ethics program. The EC should make it clear that this problem can be cured by allowing community organizations to select the EC's members. The loss of one's seat on an EC is exactly the sort of sacrifice a government official should be willing to make in the name of public trust.

The second issue is, should it be completely up to each ethics commission member whether or not to participate in a matter? Even if other officials are not required to seek independent, professional ethics advice, I believe that ethics commission members should be required. If they are not required, they should set an example for other officials by doing so on every occasion. There is no excuse for not seeking independent advice on a matter as important as this.

Since an ethics commission's staff works for the commission, it would be best to seek advice elsewhere. The commission member should seek advice from the New York City Conflicts of Interest Board or from the staff of another state ethics commission, with which the commission member does not have a personal relationship.

If a matter comes up, the ethics commission member has not sought ethics advice, and the member chooses not to withdraw, the ethics commission should ask the member to seek advice. An alternative is to discuss and vote on the matter, but (1) this can be uncomfortable, and (2) the members have neither the neutrality nor the expertise of a government ethics professional. This is a decision that should be done right. It is not something that a blindered member or even the commission itself, with respect to a situation immediately facing one of its members, should decide.

The article quotes a former New York State lobbying regulator as saying, "The commissioners were quite aware that one of them should have recused herself from an ongoing case but had not done so and didn't intend to do so. ... The commissioners' collective response was to simply look the other way at this conflict of interest."

After the commission member gets independent advice, the commission should consider the issue of withdrawal when an appointing authority, or his aide, is before the commission, and take a clear position to require withdrawal under these circumstances.

The third issue — should an ethics commission member give her personal opinion of the ethical standards of someone who will be involved in a matter before the commission? — appears to be the one that was actually discussed by the commission. The views mentioned by the leader of the discussion on the snippet that was webcast were that if she's not going to withdraw, she shouldn't say any more. In other words, it was inappropriate for her to have given her opinion of the assembly speaker's counsel. But they didn't think that this inappropriate statement was relevant to whether she should withdraw or not.

I agree that it was inappropriate. But I would add that it is inappropriate not only because it shows bias toward someone in a matter before the commission. It is also inappropriate because the ethical standards of those involved in government ethics matters is irrelevant and should be recognized as irrelevant by ethics commission members. People with the highest ethical standards can mishandle conflict situations. I believe that the commission member's decision (so far) not to withdraw is one example of this.

Robert Wechsler
Director of Research-Retired, City Ethics

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