New York State's new comptroller (see an earlier blog post [1] about the prior comptroller's ethical problems) has recently produced a report based on an audit of 31 New York local governments and a survey of many more (see the press release [2] for an overview). The 26-page report is entitled Ethics Oversight in New York State Municipalities [3], and it comes complete with a model local government ethics code that, unlike some of the other recent model codes (Michigan [4]and Illinois [5]), is halfway decent.

The Report
The report, and its audit and survey, give little in-depth information about ethics oversight in NY local governments. Essentially, we are told that some jurisdictions do not include all four of the elements required by NY's General Municipal Law [6], and some don't even have an ethics code, as required. Here are the four elements required by the GML:

...standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties, private employment in conflict with official duties, future employment and such other standards relating to the conduct of officers and employees as may be deemed advisable.

It isn't until page 17 out of 26 that we learn how the local governments are dealing with some of the other basic standards, which they are not obliged to cover. Here's what the report says:

While most of the 31 local governments we visited included language in their codes to address gifts and favors, the codes did not include guidance about other ethical issues. For example, 61 percent of the local governments’ codes did not address misuse of municipal resources, 45 percent did not address recusal, and 84 percent did not address the hiring and supervision of relatives.

In addition, less than half of the audited jurisdictions distribute their codes to officials and employees (as required by the GML), less than half have an active ethics commission (not required), and only 20% provide any ethics training (not required).

Under 2010 releases [7], you can find the comptroller's letters to each of the audited local governments, telling them in what specific ways the comptroller thinks they fall short of proper ethics oversight.

In a recent blog post [8], I identified one serious cause of New York State's problem : the fact that the state's largest cities have poor to mediocre ethics programs themselves. Good city ethics programs are important not only to the cities themselves, but also to surrounding communities that look to cities for best practices and professionally written laws.

The Model Code
The comptroller's model code [9] has some well-written provisions, but like most model codes, all of its good work is in the ethics provisions rather than in the administrative provisions. Not only does the model code not provide for an independent ethics commission, but it even requires that the EC have an official or employee on it (and there can be multiple officials, short of a majority). There is no other guidance with respect to EC membership.

No training is recommended in the model code, even though the comptroller's report sees the lack of training as a serious problem.

There is no guidance with respect to complaints, investigations, hearings, and penalties. There is no sample annual financial disclosure statement (an option in the GML), nor is there anything about applicant disclosure.

Highlights of the ethics provisions include:

Use of the language of benefit rather than interest (see my recent blog post [10] on this)
Requirement of recusal where there is a possible personal benefit
Prohibition against acquiring investments and taking outside employment that "can be reasonably expected to require more than sporadic recusal and abstention" (good and unusual language that I plan to add to the City Ethics Model Code)
Improvement to state gift provision (but too many exceptions)

Especially poor ethics provisions:

Provisions that simply reference the state's General Municipal Law, forcing people to look it up
Confidential information (see this blog post [11]) (the language is right out of the GML)

It's good that the new comptroller is interested in local government ethics, and his report and model code together are an excellent start. But just as the comptroller recommends that local governments do an annual review of their ethics codes, the comptroller will hopefully ask for feedback, do his own review, and soon provide an improved model ethics code.

Robert Wechsler
Director of Research, City Ethics

203-230-2548