NY State Bar Association Report on Local Government Ethics Reform

On January 28, the New York State Bar Association issued a report on government ethics reform in New York State, which includes a section on local government ethics reform. The report points out the many inadequacies of Article 18 of the General Municipal Law (click on GMU, then scroll down and click Art. 18), and recommends major improvements in what the state requires of local governments with respect to ethics.

Criminalizing Conflicts
The first observation of the bar association's subcommittee on local government ethics is that the state ethics law has "a heavy-handed prohibition on having an interest in a contract with one’s municipality, a violation of which is a misdemeanor." (p. 57) The report notes that this makes life difficult especially for smaller local governments. It also means that other conflicts, such as with respect to planning decisions, are not dealt with by the code. The report recommends replacing the conflict prohibition with a strong disclosure and recusal requirement.

Weak Provisions
The report then notes that state law does not require local governments to pass "comprehensive and effective" ethics codes, so that "politicial and legal obstacles" are left to prevent such codes from being passed. State law does require weak local ethics codes, but not ethics boards. Like so many state laws on local government ethics, New York's does not require the setting up of ethics programs, and so ethics programs are not set up.

Article 18's ethics provisions are weak, as well. According to the report, it permits municipal officials to hire their spouses for a municipal position. And the gifts provision, which contains language involving influence and reward, provides virtually no guidance for municipal officials. The report recommends replacing the gift provision with a bright-line rule.

The current law does not prohibit the use of municipal resources by officials and employees. The report recommends adding this very common ethics provision.

The current law also does not cover those doing business with local governments. The report recommends placing requirements on them, including a prohibition of inducing officials to violate the ethics code, a requirement to disclose officials' interests, the provision of debarment for code violators, and a prohibition of an official's employer from appearing before the official or his board.

Ethics Advice
As for advice, county ethics boards are relied on to do this. But their role is called "a dismal failure." The report notes that there are dozens, sometimes hundreds of local governments within each county, and few county ethics boards (in those counties that have such boards) actually do provide advice. The report asks for a requirement that every local government either create its own ethics board or a joint ethics board with other local governments. It could also contract out its ethics administration to another ethics board. This shows great understanding of the alternative ways of setting up ethics boards.

The Independence of Ethics Boards
The most extensive discussion on local government ethics concerns the independence of ethics boards. Here is this valuable discussion (pp. 66-67):

The independence of ethics boards, both in reality and perception, is critical. An ethics board that lacks independence will lack credibility and perhaps fairness, if not in fact then in appearance.

There is an understandable tendency for a municipal administration to exercise direct or indirect influence over its appointed boards and commissions. For example, a municipal attorney or other official appointed to a board may feel that he or she is in the best position to call meetings, set the agenda, or guide the board in its deliberations. But, even with the best of intentions, an ethics board dominated by administration insiders cannot exercise independent judgment and oversight.

To ensure both the reality and the perception that the board can and does operate independently, members should be appointed for fixed, staggered terms and removable only for cause and only after a due process hearing. The law should require that vacancies be filled and holdover members replaced or reappointed promptly. The membership should be bipartisan or multi-partisan. Consideration should be given to requiring that ethics board members be appointed upon nomination by a nominating committee. Officers and employees of the municipality should be prohibited from serving on the ethics board, lest the apparent presence of a “mole” on the ethics board discourage municipal officers and employees from seeking advice or filing a complaint, for fear that their action will be reported to their superior, who might retaliate. In addition, ethics board members should be prohibited from holding any political party office, running for any elective office, participating in any election campaign, appearing on behalf of any person before any agency of the municipality, lobbying any agency of the municipality, or entering into a contract with the municipality.

Ethics board members should select their own chair. Meetings should be called by the chair or by a majority of the members. Since few municipalities will have sufficient resources to provide a staff for the ethics board, the board will need clerical assistance from  municipal staff, who must, by law, be prohibited from revealing ethics board business to anyone outside the ethics board. Similarly, few municipalities will have sufficient resources to provide separate legal counsel for the ethics board. But, having the municipal attorney advise the ethics board raises, again, the specter of a “mole” on the board. Article 18 should therefore require that municipalities provide separate counsel on a case-by-case basis upon request of the ethics board and perhaps should also require that the municipality provide a budget sufficient for the ethics board to meet its mandate.

The report goes on to recommend the requirement of ethics training, and to emphasize the importance of independent advice.

Enforcement
The report then takes cognizance of the surprising fact that "with the exception of criminal prosecution of the prohibited interest, land use disclosure provisions and civil fines for violations of the financial disclosure law, Article 18 neither requires nor authorizes the enforcement of ethics provisions." [emphasis added] The report recommends that local ethics boards be given the power to investigate and enforce ethics law violations.

Internal Investigations
The report also delves into an area that is not usually covered: the need for clear guidance with respect to how to handle internal investigations, including when to get an outside agency to do the investigation, what to do when an elected official or agency head is being investigated, when it is appropriate to use the local police, sheriff, or state police, and what allegations require notification of state or federal criminal authorities. The report recommends that the attorney general's office provide procedural models and training on this topic.

Lobbying
Finally, the report recommends a lobbying law for local governments, with the goal of providing guidance for local officials and those doing business with them. It emphasizes three areas:  registration, improper conduct, and appropriate contacts.

Confidentiality
The only part of the report that disappointed me is its emphasis on confidentiality in the ethics process, and its failure to consider arguments against confidentiality.

Local Government Ethics Reform in New York State
According to the report, the history of local government ethics reform at the state level has been one of inaction. In 1991, a Temporary New York State Commission on Local Government Ethics recommended a whole new Article 18 (it is nearly fifty years old), and its recommendations received support statewide. But a bill based on its recommendations died in committee then, and again in 1999.

There's a lot that is missing from this report (wouldn't it be nice if reports like this made a list of the the topics they decided not to cover?). But let's hope that this report, as well as the state comptroller's (see my blog post on this 2010 report), will make 2011 the year for local government ethics reform in New York State.

Robert Wechsler
Director of Research-Retired, City Ethics

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