Last week, New York’s ethics oversight system was once again in the spotlight, but not for something that it failed to do. Instead, it may have – and I emphasize may – taken a step toward improvement.
First some background. New York’s state ethics watchdog – the Joint Commission on Public Ethics – is on its way to the dustbin of history. JCOPE was the brainchild of former Governor Cuomo and former legislative leaders (and corrupt politicians) Dean Skelos and Sheldon Silver. JCOPE was not designed to be independent, in fact it was specifically set up to be under the thumbs of the governor and the legislative leaders.
This wasn’t the first time the governor and the legislative leaders set up ethics agencies that were under their direct control. However, like its predecessors, JCOPE failed and will close up shop in a few weeks and be replaced by a new agency, an 11-member Commission on Ethics and Lobbying in Government (CELIG).
The 11-member Commission will have its membership chosen by the governor and other members of Albany’s political leadership. But there is a twist.
Under the new law the new commissioners to CELIG must be vetted by the state’s fifteen law school deans. Under the new law establishing this process, the deans are responsible for reviewing the nominees of the governor, the attorney general, the comptroller and the four legislative leaders and can reject someone not found to have "undisputed honesty, integrity and character."
Of course, those standards are vague and last week the deans released their interpretation of how they will define “honesty, integrity and character.” Their plan includes a background check for nominees — similar to those conducted by the State Police for high-level executive branch appointees — to ensure their "past personal and professional conduct reflects adherence to the highest ethical standards, and that their lived experience allows them to understand the range of perspectives needed to effectively serve as a member of an ethics commission that has broad oversight of a large and diverse public workforce."
The deans’ vetting also is intended to ensure the nominees have demonstrated an ability to be impartial, independent, fair and able to "decide matters based solely on the law and facts presented." The nominating process will include a seven-day public comment period for the elected officials' proposed nominees.
The deans’ process has been applauded by advocates. If implemented consistently over time, this new process may enhance the independence of new commissioners to CELIG and make it harder for appointing authorities to manipulate the ethics oversight system.
Yet in politics those looking to advance their own interests are looking for “leverage.” Leverage is when a politician can identify a weakness in some institution or individual that can be used as a threat. A threat that can only be avoided if the “target” does what the politician wants.
In this case, the law school deans can be exploited. They all work for institutions that receive some form of public support – indeed two of them are government-run law schools – and all of them are involved in lobbying the government.
New York’s ethics watchdog not only monitors the behavior of the state workforce, it also monitors the lobbying industry. Thus, the law school deans represent institutions that rely on government for support and are subject to scrutiny by the state. In the hands of a power-crazed statewide elected official, for example, that leverage is obvious.
Right now, the deans have taken an important first step, but they do not control the outcome. The governor and the state’s political leadership still do. Previously, ethics commissioners were individuals of stature, but some viewed their responsibilities as looking out for the interests of the elected official who appointed them.
That’s how the former governor got a multi-million-dollar book deal approved and that’s how confidential investigations were leaked.
The deans’ first moves are good ones. The “rubber hits the road” when they choose to reject someone appointed by an elected official. Right now, the system relies on the honorable intent of those electeds. Whether that “honor system” holds up over time is anyone’s guess.
Honor systems tend to fail when leverage gets used by a malignant force. A better system is one that doesn’t rely on honor, but instead relies on an independent commission. Until that system is created, all New Yorkers can do is hope that a program based on good intentions can hold up.
Blair Horner is executive director of the New York Public Interest Research Group.
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