A Restricted Source Involved in a Preferential Arrest and a Questionable Third-Party Candidacy

Sometimes, conflict of interest matters come disguised as election law matters. Most of the time, due to secrecy, laziness, or an inability to draw lines between the dots, no one recognizes the conflict of interest matter. But sometimes, someone gives the game away, and it becomes clear how inextricable the two areas can be.

According to an article in today's New York Times, the game in Nassau County, NY (pop. 1.3 million) was putting up a third-party candidate for county executive in order to take votes away from a major party candidate. One conflict matter was the arrest of a man who had not paid a $250 fine. Why was this a conflict matter? Because a tiny percentage of those who do not pay fines are ever arrested. This arrest was handled by three police officers, and occurred on a bus. It was clearly a case of preferential mistreatment.

What's the connection? The only reason we know, two months after the arrest, is that the district attorney investigated the matter after receiving a complaint from the arrested individual. The investigation led to the resignation of the county police commissioner and the retirement of the detective chief. All over a minor and legitimate, if unusual, arrest?

What had the guy on the bus done to attract the preferential mistreatment of his arrest? He had collected signatures for the candidacy petition of the third-party candidate and then, in an election law proceeding, said that he had been paid by the signature rather than by the hour, thereby breaking a New York state law. This was one of the irregularities that prevented the third-party candidate from getting on the ballot.

Here is where the conflict of interest and campaign finance aspects of the matter get tightly entwined. It turns out that a developer had almost single-handedly financed the third-party candidate's campaign (he'd also given $14,000 to the incumbent major-party candidate, but insists that his support for the third-party candidate had nothing to do with his support for the major-party candidate).

According to the district attorney, after the signature collector gave his testimony, the developer called the police commissioner to tell him that the signature collector had committed perjury and that he'd better act fast or the third-party candidate may not get on the ballot. The police commissioner called the detective chief, who opened an investigation and learned about the signature collector's unpaid fine. He ordered the arrest.

The problems in this case raise the following issues:

1. One individual, especially someone who financially benefits from government decisions, should not be allowed to bankroll a campaign. In fact, restricted sources should be severely limited in the amount of contributions they give to a candidate or to a committee or organization that is permitted to make large contributions to a candidate that has influence over decisions that affect the restricted source.

2. Officials who report to an elected official, as the police commissioner does to the county executive, should have nothing to do with election matters involving that official. This should especially be the case with anyone involved in the criminal jusice system.

3. The district attorney could find no evidence that the county executive knew about the developer's call, the investigation, or the arrest. It is very difficult to find such evidence. If a subordinate gets involved with an election matter, it should be presumed that the superior either knew about the matter or had made it clear that he didn't want to know about such matters. The subordinate should not be held solely responsible for it. After all, there was nothing in it for him, except to keep on the right side of his boss.

4. When it is believed that a third-party candidate may have been put up for election primarily to help another candidate win, the government's election or ethics commission or, if there is none or they do not act, a good government organization should investigate and hold at least one public meeting to make it clear to the community what happened and who was responsible, and to consider ways to prevent it from happening in the future (the article calls the fielding of a third-party candidate "a standard ploy of county politics").

5. Many ethics laws leave out the important phrase "directly or indirectly," and they do not prohibit conduct that may lead to political rather than financial benefits. Note how indirect and political everything in this matter is. The signature collector was just doing a minor job. He did not directly benefit from the third-party candidacy. The police officers who handled the arrest were greatly distanced from the political benefit that their conduct was supposed to provide (if any benefit was actually expected beyond revenge for snitching or lying). The police officers were doing what the detective chief asked; the detective chief was doing what the police commissioner asked; the police commissioner was doing what the county executive asked or expected; and even the county executive's benefit from the attempt to preserve the third-party candidacy was indirect.

The direct political beneficiary (the third-party candidate) was apparently out of the loop altogether, and the most direct actor, the developer, would benefit only indirectly from his help in getting the county executive re-elected. In short, the usual ethics code language of direct financial benefit would put this matter far out of reach of an ethics commission. And yet there are several instances of abuse of office, of preferential mistreatment and, possibly, of a scheme to misuse a candidacy, all of them to indirectly benefit someone who says he had nothing to do with the matter at all.

Robert Wechsler
Director of Research-Retired, City Ethics

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