The Spitzer Report and the Need for Clearer Boundaries Between Public and Private Work

The New York State Commission on Public Integrity released a report yesterday on the allegations relating to the Spitzer Administration's attempts to gather and make public the travel abuses of the Senate Majority Leader, in order to tarnish his reputation. See the New York Times article.

There are two issues I would like to focus on, both of which involve government employees (a police superintendent and a lawyer) doing private work for public officials.

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First, the use by politicians of the police for personal or political purposes. The State Police was asked to recreate the Senate Majority Leader's travel itineraries (including his use of state aircraft for political purposes), and the Police Superintendent worked with troopers to do this, knowing that it would be given to the news media and that the work went against police procedures. The superintendent is one of the four officials against whom ethics charges were brought, and one of the two officials contesting the Commission's findings.

At the local government level, the police are often treated as an instrument of the administration, and police chiefs often allow themselves to be used for political and personal purposes. Nothing is more damaging to the public's trust in government. This ranges from fixing parking and speeding tickets for administration officials and their friends and families, which is considered so common it's hardly objectionable, to getting involved in coverups and in attacks on perceived enemies, as in this case.

The second issue is the use by politicians of government lawyers for personal or political purposes. There is nothing wrong with employing private lawyers to deal with personal or political matters, but it appears that the Spitzer Administration made use of government lawyers for this, and like the police superintendent, they were happy to oblige.

The Times article points out one egregious example of a government lawyer helping to protect the governor and his aides from the Commission on Public Integrity's investigation.

In one e-mail message included in the report, Sean Patrick Maloney, an administration lawyer, noted to David Nocenti, Mr. Spitzer’s former counsel, and other colleagues that investigators had not yet thought to ask for e-mail from administration officials’ personal accounts. Mr. Maloney recommended that in their first response to a request for documents, Mr. Spitzer’s counsel include “a key adjective.” He suggested writing that “we have searched chamber records and produced herewith those chamber items responsive to your request,” to avoid being accused by investigators of not fully responding to their request at a time when the administration did not yet have access to aides’ personal e-mail.

Nearly all of Mr. Spitzer’s e-mail messages included in the report appear to have been sent from a personal account.

It should be some sort of clue to a government attorney that the person he is advising is an official's private lawyer. Advice to an official's private lawyer will usually be private advice and, therefore, outside and possibly in conflict with the government attorney's duties.

The government lawyer is not one of those charged by the Commission. It is not considered unethical for a government lawyer to provide advice that goes against the clear public interest of having the Commission on Public Integrity have immediate access to the documents it requires for its investigation. Government lawyers are expected to work for those who hired them, even if those who hired him are acting to protect themselves personally. This is no more right than having a police superintendent help officials get the dirt on other officials.

Government ethics should provide better guidelines to government lawyers, officials, and employees about when they should say, "No, this is not what I was hired to do." There need to be clearer boundaries between public and private work.

Robert Wechsler
Director of Research-Retired, City Ethics

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