NY's Moreland Commission Recommendations Too Criminally Oriented

New York State's Moreland Commission to Investigate Public Corruption filed a preliminary report on Monday. Most of the report involves state campaign finance and election laws, but many of these laws affect local government practices, as well. Those involving government ethics criminalize it, and an important recommendation is both too much and too little.

Most of the commission's recommendations involve tightening and broadening the laws. Although the commission is investigating the breaking of current laws, it recognizes that conduct which is now legal is also very damaging:

The real scandal is what remains legal. New York’s campaign finance laws and practices enable special interests and wealthy individuals to flood the political process with enormous amounts of money. Sky-high contribution limits, gaping loopholes governing the use of party “housekeeping” accounts and limited liability companies (“LLCs”), the lack of disclosure requirements for outside spending groups, and ineffectual enforcement of even the weak laws on the books all enable big-ticket contributions and expenditures to dominate our election campaigns and distort governmental decision-making.

Unfortunately, because the commission consists primarily of prosecutors, its recommendations with respect to government ethics involve criminal laws rather than ethics laws.

The best new offense it recommends is the failure to report bribery, which the commission says will "hold all elected officials to a high standard of integrity and create leverage for bribery prosecutors." Why not extend this to the failure to report evidence of any ethical or criminal violations?

Another good recommendation is a change to the state's corroboration rules. New York does not allow testimony from an accomplice to be the basis for a criminal conviction. "Because corrupt schemes are by their nature secretive, the bar on accomplice testimony makes prosecuting corruption much harder than in federal court. The Commission recommends allowing accomplice testimony to support a conviction for public corruption." Fortunately, there are no bars on accomplice testimony in ethics proceedings, at least as far as I know.

The central recommendation relating to government ethics is both too much and too little. The new crime of Undisclosed Self-Dealing would make it a felony, rather than an ethics offense, to participate in a government matter such that it would benefit oneself or a relative in excess of $3,000. However, disclosure of the relationship prior to participation would allow self-dealing. Disclosure should not cure self-dealing. Self-dealing should not be permitted at all. Withdrawal is a far more appropriate and effective cure for a conflict situation.

The commission also makes a recommendation that is too unforgiving. It would "bar those convicted of public corruption crimes from serving in a public office, registering as a government lobbyist, or obtaining government contracts." I would agree if the definition of a public corruption crime did not include ethics violations. But making ethics violations crimes means that it is less fair to exclude all criminal violators from any further relations with government.

Robert Wechsler
Director of Research-Retired, City Ethics

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