Blair Horner: Whither Ethics Reform?

May 20, 2019

By now it’s been drummed into New Yorkers – after scores of controversies, scandals and prison sentences handed out from the actions of top public officials – the state is considered one of the most corrupt in the nation.  

And for decades, Albany’s leaders have advanced numerous measures, typically touted as the “best in the nation,” to combat corruption.  But the scandals continued unabated.

Despite these boasts, it has been the failure to establish an independent ethics watchdog that is at the heart of the problem.  Why?

It ultimately stems from fear – fear that establishing an independent ethics watchdog could be co-opted by political or partisan opponents and used as a weapon against them.  And so, since the 1980s, various ethics commissions, each with different names and structures, were created to monitor state laws, but not set up to bite the politically powerful.

This critique is not about the people involved in these agencies, per se, but the fact that the ethics commissions were run by individuals who were the direct appointees of those officials subject to the jurisdiction of the ethics watchdog agencies.  In essence, the regulated were picking their own regulators.

The latest incarnation added a new wrinkle: the appointees of a particular branch of government had veto power over the possible investigations.  As a result, gubernatorial appointees could veto an investigation even if the majority of the ethics commission thought an inquiry was warranted.  The same applied for the legislative branch appointees.

How poorly these entities have been structured was the focus of a report released by reform groups last week.  According to their 50-state review of ethics commissions, New York’s ethics laws “fail to follow best practices in ethics oversight due to the inadequate structure of those organizations.”

The analysis was consistent with a review conducted by a national organization, Center for Public Integrity.  CPI did its own 50-state survey and recently concluded, “Few, if any, other states have ethics watchdogs so completely compromised by lack of independence, partisanship, lack of transparency and the other failings described" and then gave New York a grade of "F" for its oversight practices.

The civic groups’ review noted that “In many states all three branches, legislative, executive and judicial, make ethics commission appointments.  This is the case in New York only for the Commission on Judicial Conduct, which is a well-regarded enforcer of judicial ethics created in the State Constitution.”

The idea that there needs to be more independence in ethics oversight was echoed by Governor Cuomo during his reelection campaign.  In a debate with his Republican opponent, the governor said “we need more independence on JCOPE — I believe we need totally independent appointees and not necessarily representatives of both houses.  I'd be open to a number of configurations, but they'd have to be independent.  I'd have the attorney general involved; I'd have the chief judge involved in appointing the members."

The proposal the governor outlined in his campaign to lead the state is like what civic groups have been pushing, but the governor has not made it a priority during the legislative session.  While the governor did pledge earlier this year that he wouldn’t agree to a budget without an ethics agreement, the proposal to overhaul ethics oversight never had a real chance.

History shows that without meaningful oversight, even the best ethics laws in the world won’t work.  The state’s decisions to create newer ethics watchdogs, while structuring them to fail, has contributed significantly to Albany’s rising corruption risks.  Had it not been for federal prosecutors – primarily former U.S. Attorney Preet Bharara – the scandals brought to light likely would have avoided investigation and prosecution, despite happening right under the noses of those state watchdogs empowered to enforce ethics laws.

Ethics watchdogs must be independent of all public officials subject to its jurisdiction, or else its actions will always be suspect, undermining the very purpose of the ethics law to promote the reality and perception of integrity in government.  Having a majority of the commission chosen, in this case by the judiciary, would enhance public confidence in ethics enforcement that is independent of those public officials whom it regulates.

Lawmakers have six weeks until the end of session.  Strengthening ethics oversight must be a top end-of-session item.

Blair Horner is executive director of the New York Public Interest Research Group.

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