Anti-Corruption Amendment

NEW YORK STATE CONSTITUTIONAL AMENDMENT TO PROMOTE GOVERNMENT INTEGRITY AND DETER CORRUPTION

Organizations supporting the amendment:

Brennan Center for Justice, New York University Law School

Campbell Public Affairs Institute, Maxwell School of Citizenship and Public Affairs, Syracuse University

Carey Center for Government Reform

Center for the Advancement of Public Integrity, Columbia Law School

Citizens Union

Committee on Government Ethics and State Affairs, New York City Bar Association

Committee to Reform the State Constitution

Common Cause/New York

League of Women Voters of the State of New York

New York Public Interest Research Group

TEXT:

Constitutional Amendment to replace JCOPE and the LEC with a single, truly independent, enforcement agency, similar to the Commission on Judicial Conduct established in Article VI of the State Constitution, to deter corruption in the legislative and executive branches of state government.

Article V-A :  STATE GOVERNMENT INTEGRITY

Section 1.  Declarations of the People

a.  The people of New York expect officers and employees of the state to observe laws, rules and regulations that specify high standards of ethical conduct designed to avoid the reality and appearance of corruption, conflict of interest, self-dealing and breach of the public trust. Equally they expect that candidates for state office and others seeking to influencing state elections to observe laws, rules and regulations designed to regulate actual and potential corruption and conflicts of interest by regulating the influence of money in politics and making transparent the financing  and expenditures of efforts to influence voters.   To protect the integrity and freedom from corruption of the use of state power to enact laws, establish rules and regulations, and contract for goods and services funded in whole or in part with state taxes and other revenues, the people of New York expect observance of laws, rule and regulations that regulate lobbying, lobbyists and government procurement.  To insure the appropriate workplace conduct of state officers and employees and those who interact with such officers and employees while dealing with the state and its instrumentalities, the people of New York expect that all such persons will observe laws, rules and regulations setting standards of appropriate and non-discriminatory workplace behavior. 

b.  Achieving this goal requires an independent and non-partisan agency with jurisdiction over matters pertaining to both the legislative and executive branches of government and that has the needed powers to train, advise, interpret, adopt rules and regulations, investigate, conduct fair hearings that afford due process and impose appropriate sanctions on a consistent basis so that, with fair and equal application of the law, no person or entity, no matter what their status, influence or role in government, can place themselves above the law or suffer detriment due to any lack of such status, influence or role. 

Section 2.  New York State Government Integrity Commission.

a.  There shall be a New York state government integrity commission. The commission shall, on an independent and nonpartisan basis, receive, initiate, investigate and determine complaints with respect to the matters specified in Section 1 a. This jurisdiction shall be in addition to and not in derogation of the investigatory, disciplinary, vendor qualification  or law enforcement authority of any other person or entity and of the right of an aggrieved person to seek civil redress in accordance with law.  The commission may in its discretion decline to initiate, or suspend initiation of proceedings, or otherwise adjust its procedures, in view of such other proceedings undertaken or able to be undertaken by such other person or entity. 

b.  When, after hearing, the commission has determined that the respondent has violated a law, rule or regulation within the commission’s jurisdiction to enforce, the commission may impose any civil sanction authorized by law and/or refer the matter for criminal prosecution. The commission may also caution, admonish or censure such respondent or, in the case of a non-elected state officer or employee, suspend, demote or remove such respondent from office or employment after such adjudicatory process that substantially complies with the terms of any relevant collective bargaining agreement.  In deciding the severity of the sanction the commission shall consider to what extent the violation is inadvertent, isolated and/or of insubstantial consequence on the one hand or willful, repeated, causing actual public harm or risk of public harm  and/or otherwise egregious on the other.  Determinations, other than a determination to refer for criminal prosecution, shall be subject to judicial review in accordance with law except that determinations to admonish, censure or remove an official elected to office by vote of the people shall be subject to being disapproved or reduced by a majority of the members of either house of the legislature voting promptly and separately.  If the determination is one of admonition or censure, that determination shall be subject to being increased to censure or removal on the vote of two-thirds of the members of both houses of the legislature voting promptly and separately.   

c.  The commission shall consist of nine members, of whom two shall be appointed jointly by the governor, the attorney general and the comptroller, at least one of whom shall not be, or within the prior five years shall not have been, enrolled in the same political party as the governor, one jointly by the leaders in each house of the legislature of the party conferences whose candidate for governor in the most recent gubernatorial election received the largest number of votes, one jointly by the leaders in each house of the legislature of the party conferences whose candidate for governor in the most recent gubernatorial election received the second largest number of votes, and five jointly by the chief judge of the State of New York and the presiding justices of each of the appellate divisions, no more than three of whom shall be, or within the prior five years shall not have been, enrolled in the same political party.   No member of the commission shall have held office in any political party organization, have been a state officer or employee or have been engaged as a lobbyist within three years of appointment or at any time during their term.  The chair shall be elected by the commission members from among its members.   Commission members shall be reimbursed for their actual expenses and paid a per diem salary to be fixed by law but at least a per diem amount equal to the annual salary paid to a justice of the supreme court divided by 220.   A member may be removed for cause on application to the court of appeals made by a majority vote of the full membership of the commission.     

d.  The persons first  appointed by the governor shall have respectively three and four-year terms as the governor shall designate.  The persons first appointed by the presiding justices of the appellate divisions   shall  have respectively one, two, three, three, and four-year terms as  those justices shall designate.  The person first appointed  jointly by the legislative leaders in each house of the legislature of the party conferences whose candidate for governor received the largest number of votes shall have a one-year term. The person first appointed jointly by the legislative leaders in each house of the legislature of the party conferences whose candidate for governor received the second largest number of votes shall have a two-year term.  Each member of the commission shall be appointed thereafter for a term of four years.

e.  The organization and procedure of the commission shall be as provided by law provided that the commission shall act by majority vote of its membership in attendance and constituting a quorum and determine violations based on a preponderance of the evidence except that any order of censure or removal shall be based on clear and convincing evidence and shall be approved by a majority of all the members of the commission. The commission may establish its own rules and procedures not inconsistent with law and due process. Those rules shall bar ex parte communications of any kind or substance, direct or indirect, between members of the commission and their appointing authority and such rule shall bind both the member, the commission staff, the appointing authority and the staff, agents and representatives of the appointing authority.  The commission shall be empowered to designate one or more of its members or any other persons as hearing officers to hear and report concerning any matter before the commission.

Section 3. Additional Powers of the Commission

a.  The Commission many appoint an executive director, who may appoint staff, and one or more deputy directors with such duties and powers as the commission may fix. No person who would be disqualified from being a member of the commission may be appointed as executive director except that a person employed at the commission shall not be disqualified by reason of that employment.

b.  The commission and its designated hearing officers shall have the power to administer oaths, compel the attendance of witnesses and issue subpoenas.

c.  The commission shall assure the effective enforcement and administration of the state ethics laws including the code of ethics, laws providing for disclosure of financial and other interests by state officers and employees, the laws regulating lobbying and lobbyists and the laws concerning campaign finance. The commission shall take care that laws respecting procurement of goods and services by the state are faithfully observed as are laws respecting workplace behavior.  This authority shall include the power and duty to interpret laws administered by the commission, to train all persons within the commission’s jurisdiction in compliance with the laws, rules and regulations administered or enforced by the commission and to issue and interpret rules and regulations that are not in conflict with law. 

d.  The commission may make a criminal prosecution referral to a district attorney, the attorney general, a United States attorney.

e.  The commission after notice and opportunity for public comment may issue advisory opinions or bulletins which will have such protective effect on those who act in compliance therewith as is specified in the opinion or bulletin.  It shall also establish an office of ethics guidance to give informal advice to persons whose conduct it oversees. 

Section 4.  Funding of the Commission

The state shall annually appropriate an amount adequate to support the commission’s discharge of its fiduciary duty to the people.  In no event shall the appropriation for the work of the commission be less than [ten] percent of the appropriation to the state law department [currently this amount would be 12.2 million dollars]. 

Section 5.  State Code of Ethics

a.  The commission shall periodically review the state code of ethics and may propose revisions and amendments to the code. The state code of ethics, and any revision or amendment thereto, shall be drafted and construed to eliminate conduct that creates an appearance of corruption, conflicts of interest that materially impair the performance of official duties and breaches of the public trust including the misuse of official position or the abuse of official authority for personal gain.

b.  The state code of ethics shall provide that it shall be the ethical duty of any person or entity within the jurisdiction of the commission to promptly report to the commission activity known to be in violation of the state code of ethics or other law engaged in with respect to activity that is within the jurisdiction of the commission. There shall be no retaliation against a person or entity making such a report in good faith on information and belief, and any person aggrieved by such retaliation may bring a civil action for compensatory and exemplary damages.

c.  The state code of ethics shall provide that no person within the jurisdiction of the commission shall commit an act of sexual harassment while serving in his or her official capacity and no such person serving in a supervisory capacity shall suffer an act of sexual harassment to occur without taking care that there be due consequences in accordance with law.  The commission may by rule define the conduct that constitutes an act of sexual or harassment and shall establish a unit responsible for sexual harassment complaints and investigations.  

Section 6.  Recommending Revisions of Campaign Contribution Limits

The commission may recommend to the legislature limits for all categories of campaign contributions to candidates and political organizations that in its judgment are low enough to prevent an elected official from being so beholden to a campaign contributor as to materially impair such official’s exercise of independent policy judgment in the public interest.

Section 7.  Transparency

The commission shall be subject to all transparency and public access laws subject to such reasonable exceptions for pending confidential investigations as shall be provided by law. The legislative branch shall be subject to laws providing for transparency to the same extent as is the executive branch.

 

MEMORANDUM IN SUPPORT

 

MEMORANDUM IN SUPPORT OF A CONCURRENT RESOLUTION TO AMEND THE CONSTITUTION TO BETTER DETER CORRUPTION

 

Background and General Description of the Amendment:

 

It is widely recognized that New York has a corruption problem.  Polling shows that over 80 percent of registered voters think corruption in Albany is a “serious problem.”  Numerous former high-ranking New York State government officials are on trial this Spring.  One has just been convicted.  In the past 15 years, according to the Syracuse Post-Standard, at least 21 state legislators, former legislators and other elected state officials have been sentenced to prison or house arrest. 

History teaches that corruption is a breeding ground for authoritarian governments.  A government free of corruption not only protects the people as taxpayers against waste and misuse of funds, but also helps to secure their liberties against all forms of abuse of power and self-aggrandizing behavior that occur in defiance of the rights of the people.  For reasons explained below, vigorous ethics enforcement is an excellent way to deter corruption.

The current mechanisms in the executive and legislative branches to enforce rules that proscribe breaches of the public trust and other ethical violations are the Joint Commission on Public Ethics (“JCOPE”) and the Legislative Ethics Commission (“LEC”).  JCOPE investigates all ethics complaints and can impose a civil penalty on executive branch officers and employees.  LEC can disagree with JCOPE’s interpretations of the State’s ethical commands and has exclusive authority to impose civil fines on legislative branch officers and employees.  Neither has the power to censure, suspend, demote or remove an egregious violator.  

As the Committee on Government Ethics and State Affairs of the New York City Bar Association has observed, this ethics enforcement structure suffers from an extreme lack of credibility.  And for good reason – the structure is highly flawed.

The flaws are manifold.  Unlike the Commission on Judicial Conduct, an ethics enforcement agency for the judiciary that has worked well,  JCOPE is not made up of appointees from all branches of state government.  Ethics agencies in other states foster independence by including members appointed by the judicial branch, but New York’s JCOPE structure does not. 

Also unlike the Commission on Judicial Conduct,  JCOPE does not operate by majority vote.  As few as two members of the 14 member Commission can veto an investigation or a finding of violation.  This obvious flaw is unique to New York. 

The flaws in the JCOPE/LEC structure are exacerbated by the fact that  JCOPE and LEC have no rule barring ex parte contact by an appointee with that appointee’s appointing authority.  Also problematic is the fact that the appointing authority can remove its appointees for (what it claims to be) cause, and the chair serves expressly at the pleasure of the Governor.  The ability for an appointing authority to appoint recently serving state officials to JCOPE as commissioners and senior staff and up to four members of the legislature to LEC adds to the reality and appearance of political control.

As noted above,  JCOPE has no power to censure, suspend, demote or terminate any state official or employee and has no power to impose any form of sanction on a member of the legislature or a legislative employee.  In contrast, the Commission on Judicial Conduct does have the power to censure or remove a judge.  LEC also lacks sanction power beyond the imposition of a civil fine.  Additionally, the existence of two bodies independently interpreting the State Code of Ethics allows for inconsistent results.

Finally, JCOPE is not guaranteed adequate funding, which is necessary to secure its independence.  If JCOPE is doing its job it will never be beloved by those with appropriations power, and its funding will be at risk without a sufficient guarantee.

There are those who seek to justify the convoluted JCOPE/LEC structure found nowhere else in the nation on the ground that the JCOPE voting structure prevents political witch hunts.  The problem with this argument is that any politician charged with wrongdoing will always claim that it is a witch hunt.  Giving the political allies of that politician an effective veto power, as the current structure does, means that nothing will ever happen.   

It is time to beef up ethics enforcement through an agency with strong powers  similar to those possessed by the Commission on Judicial Conduct.  We know that vigorous and independent ethics enforcement deters corruption.  This is largely because an ethics violation is much easier to prove than a criminal violation, yet can still have serious consequences for the offender.

Criminal bribery and extortion are hard to prove not only because criminal liability must be established beyond a reasonable doubt and the bribe must be shown to be in exchange for a specific “official act,” but also because the likely witnesses to the corrupt transaction are themselves corrupt.  This problem was starkly illustrated by the difficulties for the Percoco prosecution presented by their star witness, Todd Howe. 

Ethics laws, on the other hand, do not require proof beyond a reasonable doubt.  These laws apply a “fiduciary breach of the public trust” standard of candor, freedom from conflict of interest and avoidance of self-dealing, and can be established based on conduct alone without the need for witnesses or documents establishing criminal intent.

Another important role of ethics enforcement is that ethical misconduct investigations are likely to uncover related criminal activity, which must then be referred to criminal prosecutors.  Mr. Percoco, for example, in his 2014 disclosure form filed with JCOPE, listed consulting payments from a developer and payments to his wife from a fictitious source.  With independent and vigorous enforcement, these disclosures would have led to referral for prosecution.   

The proposed constitutional amendment (“Amendment”) is designed to cure the fundamental flaws in New York’s current ethics enforcement structure by providing credible independence, ample powers and secure funding.  The result would produce a New York State Government Integrity Commission (“Commission”) which can’t be ignored or dismissed as paper tiger.  

The Amendment would also strengthen the State Code of Ethics.  It would recognize that the regulation of the role of money in politics goes hand in hand with the regulation of other activities that create conflicts of interest, and it would improve the level of transparency in state government by mandating that transparency laws apply equally to the legislative and executive branches.

The principal features of the Amendment include:

  • The current bifurcated JCOPE/LEC structure would be eliminated and replaced with a single Commission, ensuring consistent enforcement in both the legislative and executive branches. Most states have a single ethics enforcement agency with jurisdiction over both those branches.
  • Like the Commission on Judicial Conduct, Commissioners would be appointed by all three branches of government. A majority of the members would be appointed by persons whose conduct is not being regulated by the Commission. 
  • The Commission would have the power to sanction serious misconduct through censure, suspension, demotion or removal of a non-elected public official and through the power to censure or remove an elected official, unless overruled by a majority vote in either house of the legislature.  
  • Unlike JCOPE, where two of its 14 members can block an investigation or adverse finding, the Commission would act by majority vote.
  • Because of its mandate to avoid the reality or appearance of corruption and conflicts of interest, the Commission would be responsible for the administration and enforcement of the campaign finance laws. Its duties in this area would include recommending contribution limits to the legislature that are low enough to prevent a public official from becoming beholden to a large contributor to such an extent that a reasonable person would find real impairment of policy judgment.     
  • Unlike JCOPE, where the person appointing a member can remove that member for what the appointing authority deems to be substantial neglect of duty, members of the Commission could be removed for cause only through a process by which a majority of the Commission votes to make an application for removal to the Court of Appeals.
  • Ex parte communications between Commission members and their appointing authorities and related staff would be barred, and no member could have held office, employment in state government or any political party or been engaged as a lobbyist in the three years prior to his or her appointment or during his or her term.
  • Transparency laws would apply equally to the executive and legislative branches.
  • All state officers and employees would have an ethical duty to report known misconduct to the Commission and would be protected against retaliation.   

Establishing the Commission in the Constitution is necessary to make clear that its mandate does not violate any constitutional principle of separation of powers or legislative immunity.  Rather, the Commission, like the constitutional Commission on Judicial Conduct, would function as an integral part of New York State’s constitutional system of checks and balances.  It also makes clear that no constitutional objection can be raised about the judicial branch making appointments to the Commission.  Finally, in the past, legislative leaders have advanced an exaggerated view of the legislature’s constitutional prerogatives, arguing for example that the Constitution allows them to pay committee chair stipends to fictional committee chairs.  Amending the Constitution will make clear that the Rule of Law applies to the legislature.

Section by Section Analysis

SECTION 1.  DECLARATIONS OF THE PEOPLE

This section has no counterpart in current law and is possible because a constitutional amendment must be approved by the people.

          Section 1.a.

Section 1.a. sets forth the overarching purpose of this amendment: to ensure that the New York State government and those that do business with it conduct themselves with the highest levels of integrity, fidelity and accountability to the people of New York.  Maintaining ethical standards as a means of preventing governmental corruption is a prerequisite to the legitimacy of the functions of our state government.  The section also emphasizes that preventing the appearance of corruption can often be as important as preventing corruption itself—the people of New York must be confident that their government is working for them, and only for them.

          Section 1.b.

Section 1.b. declares that this anti-corruption goal requires a single, truly independent and non-partisan enforcement agency in order to make enforcement  credible, uniform, fair and efficacious.  The proposed agency is designed to create a level playing field on which a person’s influence, status or role neither renders him or her above the law nor frustrates his or her ability to receive fair and equal treatment. 

SECTION 2.  NEW YORK STATE GOVERNMENT INTEGRITY COMMISSION

        This section replaces JCOPE and LEC with a constitutionally established New York State Government Integrity Commission modeled in large part on the constitutionally established Commission on Judicial Conduct.

          If proposed by the legislature and adopted by the people, the Commission would be one of the strongest ethics enforcement agency in the country.  See fifty-state chart attached.  New York’s reputation as overly indifferent to ethics and prone to corruption would be well on the way to transformation. 

          Section 2.a.  [Creates the Commission; powers not in derogation of other law enforcement authority or civil litigation]

Section 2.a. establishes the Commission and delineates the Commission’s authority to, on an independent basis, receive or initiate and resolve ethics and integrity complaints.  This section makes clear that this Commission authority should in no way impede or diminish the anti-corruption work of any other agency or law enforcement authority or those entities’ right to seek relief in the courts.  Indeed, the Commission can defer to proceedings by these other authorities and could choose to do so in order to make the best use of its own resources.    

          Section 2.b.  [Enforcement powers and available sanctions]

Section 2.b. sets forth the Commission’s power to enforce the laws within its jurisdiction.  Rather than merely possessing the ability to fine violators of the ethics laws, the Commission’s authority includes the ability to admonish, censure, suspend, demote or remove a state employee in the legislative or executive branches.  In the case of an elected official, the Commission could order censure or removal but that order could be set aside and a lesser sanction imposed by majority vote of both houses of the legislature.  The legislature could also increase the sanction, but this would require a two-thirds vote.  For example, a legislator or a state-wide elected official could be removed either by an order of the Commission that was not overturned by a majority vote of the legislature or without an order of the Commission on a two-thirds vote of the legislature.   

Granting the Commission power to admonish, censure or, in egregious cases, remove a violator is a crucial step toward achieving the goal of deterring corruption in New York State government.  Any sanction imposed by the Commission is subject to judicial review, helping ensure that the Commission’s decision-making power comports with due process. 

          Section 2.c.  [Appointment and removal of Commissioners; eligibility for appointment; compensation]

Section 2.c. sets forth the composition of the Commission and the procedures for appointing and removing Commission members, with a focus on preserving the independent and non-partisan nature of the Commission.  Like the Commission on Judicial Conduct, members of the Commission would be appointed by all three branches of government – the , one jointly by the leaders of the legislature of each major political party in the two houses of the legislature (total of two), two jointly by the Governor, the Attorney General and the Comptroller, the three elective officials of the executive branch, and five jointly by Chief Judge of the State of New York and the Presiding Justices of the Appellate Divisions.  This helps ensure the Commission’s independence and impartiality.  This independence is reinforced by the fact that a majority of the Commissioners would be appointed by persons who are not subject to regulation by the Commission but rather to regulation by the Commission on Judicial Conduct.

The appointment process is also designed to be non-partisan.  Two of the four members appointed by the Governor and the Legislative Leaders will not be of the same political party as the Governor and no more than three of the persons appointed by the Presiding Justices will be of the same political party. 

To be eligible for appointment, a person may not have been a state officer or employee, a lobbyist or a political party officer within the previous three years.

Commissioners would be compensated on a per diem basis pro rata to the basic compensation of a member of the legislature.   

Unlike JCOPE, where the person appointing a member can remove that member for cause, members of the Commission could be removed for cause only through a process by which a majority of the Commission votes to make an application for removal to the Court of Appeals.  This protective removal process provides additional assurance of independence. 

          Section 2.d.  [Term of appointment]

Section 2.d. provides for staggered four-year appointments. 

          Section 2.e. [Voting and other procedures]        

Section 2.e. delineates the Commission’s organization and procedure.  Unlike JCOPE, which has a complex and partisan voting system under which two of its 14 members can block an investigation or adverse finding – a system that is not comparable to any other state’s ethics commission voting system – the Commission would act by majority vote.  Violations would be determined based on a preponderance of the evidence, but orders of censure or removal would have to be based on clear and convincing evidence, a standard that recognizes the weightiness of the decision to censure or remove any state official or employee.  The evidentiary standard of clear and convincing evidence is also the standard used to censure or disbar an attorney under Rule 1.3 of the American Bar Association’s Standards for Imposing Lawyer Sanctions.  The section grants the Commission the power to create its own rules and procedures that conform with law and due process.  It requires the Commission to establish rules prohibiting ex parte communications between Commission members and their appointing authorities (along with certain affiliates), another feature designed to foster the independence of Commission members.          

SECTION 3.  ADDITIONAL POWERS OF THE COMMISSION

          Section 3.a. [Commission Executive Director, Deputy Directors and Staff]

Section 3.a. provides that the Commission will appoint an executive director and may appoint deputy directors.  The executive director must meet the same eligibility requirements as a Commissioner except that the executive director may be promoted from within the Commission.  The executive director may hire staff.

          Section 3.b. [Investigative and Hearing Powers]

Section 3.b. grants the Commission and its designated hearing officers the power to administer oaths, compel the attendance of witnesses and issue subpoenas.

          Section 3.c. [Power to enforce and administer ethics, lobbying and campaign finance laws; power to oversee the due administration and enforcement of procurement and workplace misconduct laws]

Section 3.c. makes it the Commission’s power and duty to effectively administer and enforce the state’s ethics, lobbying and campaign finance laws.  The major change is to move the administration and enforcement of campaign finance laws from the state and local Boards of Election to the Commission.  Campaign finance laws serve to manage the conflicts of interest that can arise from campaign contributions so as to avoid any appearance of corruption.  Because these laws are enforced through disclosure and investigation, they can be managed centrally to ensure uniformity and take advantage of economies of scale. 

This campaign finance responsibility is an important part of the Commission’s broader purpose of avoiding the reality or appearance of corruption, and close to half of the states that have independent ethics commissions place the enforcement of campaign finance laws within the jurisdiction of the ethics commission. 

The section also requires the Commission to uphold laws prohibiting misconduct related to the procurement of goods and services (e.g., related-party transactions and “kickbacks”) and laws prohibiting workplace misconduct such as sexual harassment.  While many ethics commissions throughout the country regulate conflicts of interest, lobbying and procurement misconduct, New York’s Commission would be among the first in the nation to regulate workplace misconduct.

Deleterious workplace misconduct such as sexual harassment is strictly prohibited in the private sector and not infrequently results in termination of employment.  Independent oversight of the administration and enforcement of  workplace conduct laws and regulations will help hold state government to a high standard. 

Finally, the section grants the Commission the power and duty to interpret the laws within its jurisdiction, provide training to help secure compliance with these laws and promulgate and interpret its own rules and regulations that are not in conflict with these laws. 

          Section 3.d.  [Referrals for criminal prosecution] 

Section 3.d. bestows on the Commission the power to refer matters to state or federal prosecutors or to the Attorney General for criminal prosecution.  

          Section 3.e. [Advisory Opinions]

Section 3.e. grants the Commission the ability to issue advisory opinions regarding any law that it has the power to administer and enforce or any law whose administration and enforcement it has the power to oversee.  Before adopting an advisory opinion, the Commission would have to provide notice and an opportunity for public comment.  Such opinions would be subject to judicial review in accordance with law.  The Commission shall also establish an Office of Ethics Guidance to give informal advice to the persons whose conduct it oversees.  

SECTION 4.  FUNDING OF THE COMMISSION

          Section 4 sets a minimum level of funding for the Commission at ten percent of the budget of the Department of Law.  This provision helps ensure that those regulated by the Commission cannot hinder or incapacitate the Commission by refusing to give it the funding that it needs.  See N.Y. Pub. Interest Research Grp. v. Giuliani, 644 N.Y.S.2d 38 (N.Y. App. Div. 1996) (holding that the provision in the New York City Charter providing for minimum funding of the New York City Independent Budget Office prohibited any delay in funding because “the power to delay (without limit) is the power to destroy”).   

SECTION 5.  STATE CODE OF ETHICS

          Section 5.a.  [Purpose of the State Code of Ethics (Section 74 of the Public Officers Law); Commission’s duty to review and propose amendments]

Section 5.a. requires the Commission to monitor the adequacy of the state code of ethics and propose revisions and amendments as it sees fit.  The state code of ethics shall aim to eliminate any appearance of corruption or impropriety relating to state government, eliminate conflicts of interest that frustrate officials’ abilities to impartially discharge their duties and bar breaches of the public trust, including the misuse of official position.  These objectives are crucial to governmental integrity, and it is thus incumbent on the Commission to monitor the state code of ethics.

          Section 5.b. [Duty to report misconduct] 

Section 5.b. makes it the ethical duty of persons within the Commission’s jurisdiction to report to the Commission any conduct such persons know to be in violation of any law within the jurisdiction of the Commission.  In other words, it will itself be an ethical violation for persons within the Commission’s jurisdiction to not report the misconduct of others.  This provision is crucial to the Commission’s ability to learn of misconduct.  The section’s provision for a retaliation cause of action for aggrieved reporting persons protects those who in good faith report on the basis of information and belief.  Thus, the standard for protection against retaliation is broader that the standard for mandatory reporting.

          Section 5.c.  [Sexual Harassment]

Section 5.c. makes sexual harassment a violation of the state code of ethics.  Sexual harassment is already treated as an ethical violation within JCOPE’s jurisdiction, but uncertainty can arise because it is not specifically proscribed by the code of ethics.  Sexual harassment, while a form of unlawful discrimination, is also motivated by self-gratification which is a form of self-dealing and breach of the public trust.  Since ethical violations occur without regard to motivation under the appearance standard, it is appropriate to treat it as an ethical violation irrespective of motivation.  Moreover, unlawful discrimination generally is a form of misconduct within the purview of the Commission and, as with sexual harassment, on a non-excusive bases with other civil and administrative remedies.   This parallels New York’s Code of Professional Conduct for lawyers where unlawful discrimination can be grounds for discipline up to and including disbarment. 

SECTION 6.  RECOMMENDING REVISIONS OF CAMPAIGN CONTRIBUTION LIMITS

          Section 6 authorizes the Commission to recommend to the legislature limits for all categories of campaign contributions to candidates and political organizations.  The standard to be applied by the Commission is intended to prevent an elected official from being so beholden to a contributor such that the official’s ability to impartially make independent policy judgments in the public interest is materially impaired.  This objective standard related to the management of conflict of interest is intended to equate the reasonable inference of a candidate being materially beholden to a contributor with the appearance of quid pro quo corruption between the candidate and contributor that justifies restriction under Buckley v. Valeo, 424 U.S. 1 (1976), and its progeny.  This standard would not depend on coordination between the candidate and the contributor but rather on the objective likelihood that the candidate would know of the contribution and become materially beholden.  Cf. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).  

SECTION 7.  TRANSPARENCY

          Section 7 provides that the Commission shall be subject to all transparency and public access laws applicable to state government agencies or instrumentalities.  This provision helps hold the Commission, like any agency, accountable to the public and reinforces the public’s confidence in the Commission’s purpose and its commitment to that purpose.  The section, however, also recognizes the necessity of confidentiality during pending investigations, and therefore allows for reasonable confidentiality provisions as provided by law.

          To further promote transparency, Section 7 requires that transparency laws such as the freedom of information law and the open meetings law apply equally to the legislative and executive branches.  Currently the “sunlight” duties of the legislature are much more circumscribed than those of the executive. 

 

 

 

 

 

 

 

 

 

 

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