Ethics Rot in Albany

Governor Patterson’s veto of the ‘so called’ Ethics proposal is based upon common sense, good government and is courageous. To often legislation is passed with high sounding titles but are just political slogans not intended to change anything. Calling something “Ethics reform” doesn’t make it so. Would the legislatures Ethics law prevent another Joe Bruno” NO. Would it prevent “pay to play” politics in Albany? NO. Would it prevent government by special interest? NO. It actually uses the word “confidentiality or “confidential” 18 times. It also creates a commission – with 4 being appointed by the legislature. Still the fox guarding the hen house! As Governor Patterson points out in his Veto message:
“ … the lack of separation between members and their appointees was demonstrated only recently when the appointee of the former Senate Majority Leader determine it appropriate to hold a fundraiser for his appointer’s legal defense from public corruption charges. There is simply nothing in this bill that would alter that astounding level of coziness between enforcer and legislator including the making of political contributions.… “
Of course, you will hear that the Governor vetoed the sound bite: “Ethics Reform”. This latest round of Albany gridlock is being treated by the legislature like they have traditionally done. Each will go home and brag about passing something called “ethics reform”. The bill numbers are: A.9544/S.6457 and they are available on line. You can read for yourself and determine that even if passed “Ethics Rot Remains”.

A full copy of Governor Patterson’ Veto message is attached.

Doug McGivney

VETO MESSAGE - No. 1
TO THE ASSEMBLY:
I am returning herewith, without my approval, the following bill:
Assembly Bill Number 9544, entitled:
“AN ACT to amend the executive law, in relation to establishing the
executive ethics and compliance commission; to amend the legisla-
tive law, in relation to the creation of the New York state
commission on lobbying ethics and compliance; to amend the legis-
lative law, in relation to establishing the legislative office of
ethics investigation and the joint legislative commission on
ethics standards and to repeal certain provisions of such law
relating to ethics; and to amend the public officers law, in
relation to ethics reports; to amend the legislative law and the
public officers law, in relation to financial disclosure of public
officers; to amend the election law, in relation to a state board
of elections enforcement unit and counsel, personal use of
campaign funds, filing requirements, political communication,
independent expenditure reporting, enforcement proceeding and
penalties for violations; to repeal certain provisions of the
election law relating to filing of statements; to repeal certain
provisions of the legislative law relating to prohibited activ-
ities of legislative employees; and providing for the repeal of
certain provisions upon the expiration thereof”
NOT APPROVED
At the opening of the 233rd Legislative Session, I said in my State of
the State address that we must immediately deal with the chronic abuse
of power. The continuing experiences of outside influence and internal
decay have bred cynicism and prompted scorn from the people we repre-
sent. I called for addressing the unethical conduct and bad acts that
have embarrassed us all by adopting an ambitious proposal to reform
Albany that I presented to the Legislature last spring, and again
respectfully submitted in revised form with my budget for Fiscal Year
2010-11. The centerpiece of that proposal is a truly independent ethics
enforcement agency, which would apply one standard to both the Legisla-
ture and Executive, and would be beholden to neither.
The Legislature has responded by passing its own ethics and lobbying
legislation, ostensibly to “provide more independence for the govern-
mental structures that address issues of ethics” and “promote compliance
with and enforcement of campaign finance laws” to expose the pay-to-play
atmosphere with additional transparencies. While I passionately support
the Legislature’s stated goals, I am returning this bill with my disap-
proval not only because a number of its provisions are seriously flawed,
but also because of what this bill is missing.
The bill makes significant changes to the structures for ethics advice
and enforcement, but it manages to make such wholesale revisions without
addressing the most glaring shortcomings of the current regime. It would
establish a new State Commission on Lobbying to be known as the “New
York State Commission on Lobbying Ethics and Compliance” to oversee
ethics compliance by the Executive Branch, replacing the current Commis-
sion of Public Integrity. The bill also would establish a new “Joint
Legislative Commission on Ethics Standards” to replace the current
Legislative Ethics Commission, and would further establish a new “Legis-
lative Office of Ethics Investigations” responsible for assisting the
Legislature in carrying out its investigatory and enforcement responsi-
bilities with respect to ethical standards. The executive directors of
these new entities would be appointed by a majority vote of the commis-
sioners and would serve fixed terms. The executive directors could be
removed only for cause, by a majority vote of the commissioners. The
legislation also would mandate the institution of an enforcement unit
within the State Board of Elections (SBOE) and require that at least 35
percent of the SBOE’s annual budget be dedicated to the unit to promote
increased enforcement of campaign finance laws.
I am encouraged by certain aspects of this bill, including increased
penalties for non-compliance, enhanced reporting of certain outside
business, a revision of the definition of widely attended events and
clarification of the nominal gift amount, that indicate the Legislature
is serious about its interest in such reforms and recognizes that we
must address these very important issues together. I stand ready to work
with the Legislature to build a system of truly independent enforcement
that is premised upon transparent disclosure and ends the unfair and
disproportionate influence of special interests and lobbyists in our
State Capitol. But unfortunately, I cannot accomplish those goals by
signing this legislation, which falls far short of what the people of
New York seek and deserve.
This bill contains many serious deficiencies, which either fail to
improve current law or substantially limit the effectiveness of the new
requirements the Legislature seeks to impose. For example:
The bill fails to address the most glaring shortfall of the present
system for ethics enforcement: the absence of any independent oversight
of the Legislature. The current system, by which the Legislature polices
itself, has been a dismal failure. Neither the Legislative Ethics
Commission, nor its predecessor the Legislative Ethics Committee, has
filed a single notice of reasonable cause - that is, it has never
charged anyone with any misconduct whatsoever - while several legisla- ______ ___
tors and other State officers have been criminally charged for having
misused their offices corruptly. Indeed, the Legislative Ethics Commis-
sion still has not been fully constituted - nearly three years after it
was created. The sponsors contend that the New Legislative Office of
Ethics Investigations will strengthen the weakest link in the ethics
chain, because it would be comprised of persons who are not members of
the Legislature, although they would be appointed by legislators. But
the current Legislative Ethics Commission, if ever fully formed, would
have a majority of non-members, a fact that has not heretofore led to
one iota of enforcement. Indeed, the lack of separation between members
and their appointees was demonstrated only recently when the appointee
of the former Senate Majority Leader to this body determined it appro-
priate to hold a fundraiser for his appointer’s legal defense from
public corruption charges. There is simply nothing in this bill that
would alter that astounding level of coziness between enforcer and
legislator, including the making of political contributions.
The ultimate decision-maker under this bill for legislative ethics -
the Joint Legislative Commission on Ethics Standards - would actually
represent an increase in the influence of legislative members. The
current Legislative Ethics Commission is required to have a non-legisla-
tor majority of 5-4. The new Joint Commission in evenly split, 4-4.
Thus, under present law, a majority of non-members could impose disci-
pline over the uniform wishes of the legislators to the contrary. This
could not happen under the new body that would be created by this bill.
In sum, the notion of legislative ethics reform reflected in this bill
is a weaker adjudicative body, more heavily dominated by the Legisla-
ture. It is difficult to imagine, therefore, on what basis one could
conclude that the new ethics overseer proposed in this bill - even if
the Legislature got around to appointing all of its members - could
provide effective enforcement. Even with respect to the Executive
Branch, the legislation would continue the practice by which individuals
under an enforcement body’s jurisdiction appoint the members of that
body. I have proposed legislation that would deprive me of the right to
appoint the entity that would oversee ethics in the Executive Branch. I
simply ask that the Legislature accept the same basic principle.
The bill would purport to provide greater disclosure for the Legisla-ture, while actually shielding legislators’ outside clients fromsunlight. Full disclosure would reduce any appearance of impropriety,supply information to the public and aid in detecting violations.Instead, the sponsors have defended the continued omission from the lawof a requirement that lawyers and other members of the Legislature whoare employed in so-called “protected professions” fully disclose theirclients. Thus, under the proposed bill a legislator could earn hundredsof thousands from a client with a direct interest in legislation, yetnot have to disclose that fact. Such concealment is defended by claimsof “attorney-client privilege,” but that is simply a smokescreen, as theprivilege does not apply to the client’s identity. See Priest v. _____________Hennessey, 427 N.Y.S.2d 110 (4th Dep’t), aff’d 51 N.Y.2d 62 (1980).__________ _____
Further, New York Disciplinary Rule Section 7-102(A)(3) provides that a
lawyer shall not “conceal or knowingly fail to disclose that which the
lawyer is required by law to reveal.”
The bill provides fixed terms for the executive directors of the
ethics enforcers. While it makes sense to provide for fixed terms for
the commissioners so they can be independent, the role of an executive
director is to carry out the policies set by the commission. Providing a
fixed term, and thereby making it difficult to terminate the executive
director’s employment, creates an unwarranted risk of a demagogue or
rogue ignoring the commissioners’ express wishes. Moreover, towards the
end of a fixed term, an executive director could jettison his or her
purported independence as he or she networks for future employment
opportunities. Indeed, the most recent crisis at the Public Integrity
Commission involved allegations of misconduct by the executive director.
This bill would not aid in the removal of the director in such a case;
it would hinder it. There is a simple solution to this problem: create a
truly independent Board to oversee the work of the director.
The bill as drafted would weaken the investigative and enforcement
authority within the proposed Commission on Lobbying Ethics and Compli-
ance by limiting the authority of lobbyist enforcement solely to the
Legislature, as opposed to the current structure within the Commission
on Public Integrity that applies investigative and enforcement powers
evenly in respect to lobbying the Executive and Legislative Branches. It
appears that the drafters of this bill exclude any investigatory author-
ity by the Commission on Lobbying Ethics and Compliance with respect to
the Executive Branch. Since it is a well established principle that
agencies may only act in ways that are within their specific grants of
authority, any actions taken outside such authority may be ultra vires.
This bill makes some improvements to enforcement of our campaign
finance laws and improves certain disclosure requirements; however, it
lacks the key element to real campaign finance reform—reducing the
corrupting influence of money in our election system. New York State’s
campaign finance laws are among the weakest in the United States,
including having some of the highest contribution limits and lowest
participation percentages. Moreover, prodigious loopholes, coupled with
inadequate enforcement, allow these already weak laws to be subverted
with ease. Enactment of meaningful campaign finance reform is critical
to ensuring integrity in government by stemming the influence of wealthy
special interests in elections and the legislative process. There are
no reductions whatsoever in New York’s high and, in some cases, unlimit-
ed campaign contribution limits. While New York has some of the highest
campaign contribution limits in the nation, it has the lowest campaign
participation. That is because ordinary New Yorkers cannot compete with
monied interest who individually can contribute over $50,000 to a candi-
date for Governor, or Political Action Committees that can give unlimit-
ed contributions to a candidate or party committee’s so called “house-__
keeping account.” In order to encourage more participation and,
therefore, more interest in the election process, my bill would cap
contribution limits at $1,000 and include a four to one public matching
system, capped at $250 per contribution, which would allow more people
to participate in elections in a meaningful way. And we must ensure that
enforcement of the campaign finance laws is carried out in a non-parti-
san, fair and equitable manner. I am willing to negotiate different
contribution levels and to separate a new public campaign financing
regime from an Ethics Bill, but I believe there must be substantial
reductions in the amount of permissible contributions. And whatever
bill emerges, it is important that it ensure that enforcement of our
campaign finance laws is carried out without affording advantage to the
party in power.
The problems contained in this bill are not trivial. They would under-
mine efforts to signal to New Yorkers that all public officers and
employees are adhering to high standards of ethical conduct and account-
ability.
I said in my State of the State address that we must all reflect on
how different our position and standing would be today if we had earlier
instituted adequate procedures to address the unethical conduct and bad
acts that have embarrassed us all. Now, the public wants and deserves
bolder and more decisive initiatives to win back its trust. The goal we
share is to bring fairness and openness to government. There is, partic-
ularly now, an urgent need to be able to point to rules and structures
that address impropriety promptly and fairly, and minimize the potential
for conflicts of interest.
I am told, by some who profess expertise in these matters, that by
disapproving this legislation I am making the “perfect the enemy of the
good.” I must respectfully disagree. I am not opposed to taking limited
and positive steps towards improving the ethical climate of New York
government, whenever such opportunities present themselves. Indeed, upon
its delivery, I will sign a separate bill (S.6439/A.9559) that would
prohibit public officers from using state property, services or other
resources for private business purposes. It would further seek to end
the use by public officials of State property, services or other
resources for private business or other compensated non-governmental
purposes that deprives the government of $1,000 or more. That bill would
close a small but dangerous hole in our ethics laws, and therefore
represents a positive improvement.
The present bill, however, is another matter. It would enact a funda-
mental and complex restructuring of the State’s ethics enforcers for the
second time in three years, and yet leave the most fundamental shortcom-
ing of the current system untouched. It would purport to offer the
public greater disclosure, and then allow the same legislators who claim
to create genuine transparency to hide their conflicts of interest from
public view. In sum, it would trade a historic opportunity for the
institutionalization of false promises. That is not the progress that
New Yorkers want to see.
Many of those who now urge me to support this bill held quite a
different view very recently. In the past year, the League of Women
Voters testified before the Legislature in favor of “combin(ing) the
(ethics) oversight functions into one new entity”; and said such entity
would be a “critical step in the right direction” and that ethics reform
“will not be achieved without enforcement by an adequately funded inde- _____________________ _____
pendent body.” The Citizens Union echoed the need for an independent and
unified enforcer. And the New York Public Interest Research Group has
pointed out persuasively that “no one can argue that self-regulation (by
the Legislature) has worked.” Yet these same advocates now would have
me sign a bill that would create a trifurcated ethics enforcement
regime, and that would leave in place precisely what they have previous-
ly condemned: self-policing by the Legislature. I do not know why they
have abandoned their earlier views, so recently professed. But I have
not abandoned mine.
Some in the Legislature already have announced that they would vote to
override my veto, and thereby establish the deeply flawed arrangements
of the legislation before me into law. Under our Constitution, that is
their prerogative if they can secure the requisite number of votes. But
while the Legislature can turn this bill into law if it wishes, there
are some things that are beyond its power to accomplish in this manner.
An override will not regain it the public’s trust. It will not make an
ethics enforcement body truly independent when it is beholden to its
appointing authority. It cannot somehow reverse the weak record of self-
enforcement by the Legislature. And it cannot create transparency while
hiding the facts most significant to the public.
It is time to try a better approach: to dispense once and for all with
the deck chair-rearranging on New York’s ethical Titanic. I call upon
the Legislature, both majority and minority conferences, to work togeth-
er with me on a bill that would restore the integrity and trust of our
citizens, and that would no longer allow all of us to be painted in a
bad light because of a few bad apples. This is the appropriate moment to
enact into law a truly independent ethics enforcer, apply a unified
standard to the Legislature and Executive alike, end our system of pay-
to-play politics, increase transparency and accountability, strengthen
enforcement in a non-partisan manner and allow the people of this State
to understand fully the conflicts and incentives under which their
elected representatives operate.
The bill is disapproved. (signed) DAVID A. PATERSON