Stall and Attack Offensives in Ethics Proceedings

It's important for ethics commissions to be prepared for the occasional official who, along with his or her attorney, will do anything to stop or at least delay its investigation, including attacks on the EC itself. A good example of how relentless an official can be is John J. O'Connor, now former head of the SUNY Research Foundation, whom I wrote about in a recent blog post.

According to an article in the Albany Times-Union on Monday, the state ethics commission started investigating O'Connor in January 2009 after the Times-Union wrote about a no-show job he had allegedly given to the daughter of the then state senate majority leader. She left the foundation in April of that year.

In May 2010, O'Connor, under the name John Doe, filed an action against the commission in a sealed proceeding, challenging the commission's standing to investigate him. The action was dismissed in July, but because the court had sealed it, the investigation was not made public.

It is not clear exactly what has caused the investigation to take so long, but one factor has been O'Connor's resistance to giving testimony and documents to the EC. Here's an interesting example of this resistance. According to the article, on the day O'Connor resigned, he filed a paper arguing that the EC's most recent subpoena was improper because it hadn't paid in advance for his travel expenses to the EC's office in Albany, which at the time the subpoena was filed was two blocks away from O'Connor's office. What is improper about asking an official to walk two blocks or, if he prefers, take a taxi on his own dime?

O'Connor also filed an action to take the EC off the case and appoint an independent hearing officer. He has accused the commission of misconduct and "media leaks," even though the EC had, in the first place, responded to a newspaper article which laid out the facts before the investigation even began. The attorney general, representing the EC, said in response that O'Connor's defense strategy "has included what magicians call 'misdirection' and stalling tactics."

And, while stalling himself, O'Connor told the court that the investigation has caused him irreparable harm and "immeasurable damage to my reputation as the [EC] continues to unnecessarily prolong this investigation."

After all this stalling, the same court action seeks an immediate hearing before the EC, so that O'Connor can tell his side of the story. The AG's office replied, "What he now seeks, in essence, is to preclude the commission from using his sworn testimony in preparation for the hearing, and to limit the commission to learning Mr. O'Connor's sworn version of events for the first time when Mr. O'Connor testifies under oath at a hearing."

The goal is to make O'Connor look like the victim, to take all the attention away from O'Connor's conduct. O'Connor's attorney told the court the day O'Connor resigned, "Mr. O'Connor is not seeking any preferential treatment. He is simply asking to be treated fairly. There is no other individual awaiting a commission hearing that is facing the daily media assault on their reputation as Mr. O'Connor."

As if this has anything to do with the EC, which itself acted on the basis of a newspaper article. It was SUNY's internal investigation that ratcheted up the publicity and led to O'Connor's resignation; this had nothing to do with the EC. In fact, it had nothing to do with the alleged no-show job.

It is common for lawyers to stall, but it is not as common for lawyers to then blame the delay on the other side. It is common for lawyers to portray their client as a victim, but it is not as common for lawyers to blame everything on a body that had little to do with the alleged victimization. And it is not common to try so hard to undermine the jurisdiction of an ethics commission.

One would think that O'Connor's lawyer really knows what he is doing. And he does. Karl J. Sleight was the executive director of the current EC's predecessor (he left that post four years ago).

Does someone who has held such a position have an obligation to treat the EC with respect, to follow its reasonable requests and not accuse it of acts it did not do? Does someone who has headed an EC have an obligation not to try to undermine the public's trust in the ethics process itself? I think he does. But that's clearly ancient history.

And there's that thing known as zealousness that gives a lawyer the right, even the obligation, to try anything he can, even with respect to an ethics investigation, even though zealousness is solely a criminal law concept. Thank goodness lawyers in ethics cases are not usually this zealous.

Robert Wechsler
Director of Research-Retired, City Ethics

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