Like the rest of the nation, New York State allows its legislators to have outside jobs – they are considered part-time. Laws are in place to ensure that such outside income does not create a conflict-of-interest for the lawmakers – laws require a combination of requirements that lawmakers recuse themselves of decisions which may directly affect their wealth, prohibit them from using their office for personal gain, and by requiring the disclosure of the sources of outside income in order to ensure that the public – and regulatory agencies – can monitor lawmakers’ behavior.
New York has 213 state legislators. In a review conducted by the New York Public Interest Research Group in 2011, roughly one-third of them report no outside job (they may have income from investments, for example, but no outside job). About one sixth were realtors or landlords, and this was the largest category of lawmakers’ outside occupation. A close second was the category of those working in the law.
While mandatory personal disclosures should apply to a broad range of legislators and other public officers, it has been hotly debated whether lawyers should report the names of their clients. Obviously, without such disclosure lawyer-legislators could easily hide business relationships in which the legislator is enriching him or herself by having clients with business before the government.
More recently, the issue came to a head when the New York Times reported that the Speaker of the Assembly was not reporting some of his legal work. The Speaker has declined to comment, so it is not clear whether an ethics violation occurred or whether he has some explanation for this apparent lack of disclosure.
But lawyer-legislators have resisted a requirement that they disclose the names of their clients, citing attorney-client privilege.
And so far, that view has blocked such disclosures. Yet, there are some in the legal community that challenge that assertion. The New York City Bar Association has made the argument that such disclosures should be mandated.
They argued that there is “no basis for excluding lawyers from the public scrutiny to which legislators should be held. Requiring attorney-legislators to make these disclosures will not violate the rules governing attorney conduct and will go a long way toward restoring public confidence in New York State’s governing process and the independence of legislators.” The City Bar cited four other states with similar disclosure requirements, Washington, California, Alaska and Louisiana.
The City Bar Association concluded that it urged that state law require attorney-legislators to disclose the following information with regard to all clients:
• client identity;
• the amount and nature of all fees and income above a minimum threshold; and
• a clear description of services provided in exchange for the fees.
The City Bar did note that in some circumstances, such as when the disclosure could result in release of confidential communication between the lawyer and the client, such relationships should remain confidential. However, the City Bar did not believe that that determination should be made by the lawyer, but by some independent entity.
The City Bar argued that New York should follow the lead of the other states, particularly California and Washington, which have created independent entities to determine whether an exception is warranted under particular cases or whether certain information should be kept confidential in a case of extreme hardship that would not violate the public interest.
Or as the New York Times described it, “such disclosures would help to build public confidence in Albany by shedding light on how New York legislators amass income and whether it is connected to legislative payoffs that in effect amount to bribery.”
Such disclosures should not focus on lawyers alone, but on all lawmakers involved in professional endeavors. Albany has seen its share of problems from non-lawyers involved in “consulting” occupations. For example, in 2009, former Queens Assemblyman Anthony Seminerio pled guilty to charges of corruption, having disguised illegal payments from various sources as income from his “consulting” practice.
As the new legislative session begins, lawmakers should get to work on restoring the public’s confidence in Albany.
Blair Horner is the Legislative Director of the New York Public Interest Research Group.
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