Candidates for Governor Have So Far been Unwilling to Say Where They Stand on Creating an Independent Ethics Watchdog
Letter of 4/16/2018 requesting position.
Please accept respectful greetings from the Committee to Reform the State Constitution, whose website address is www.committee2reform.org. We are a non-partisan independent expenditure committee registered with the New York State Board of Elections to support voting reform, anti-corruption reform and court reform and to oppose candidates for state office who are unwilling to actively support needed reforms in these areas.
The Committee has decided to focus on one issue in connection with the upcoming primary and general elections for Governor of the State of New York, in which you are all likely primary and/or general election candidates. That issue is support of the anti-corruption constitutional amendment that the Committee, along with other groups, has framed (the “Anti-Corruption Amendment”). It, together with the Memorandum in Support, is attached hereto and can also be found on our website.
We leave it to the voters to judge the character and fitness of the candidates, but subject to their judgment that the candidates meet a basic standard in that regard, we think a candidate’s position on the Anti-Corruption Amendment should be a decisive factor in deciding whether to support that candidate.
The Anti-Corruption Amendment would replace the Joint Commission on Public Ethics (JCOPE) and the Legislative Ethics Commission (LEC) with a single truly independent enforcement agency. This change is needed because the JCOPE/LEC structure lacks the necessary non-partisan independence to be an effective enforcer of the State’s ethics and state workplace anti-harassment laws.
Unlike the Commission on Judicial Conduct established in Article VI of the New York Constitution, which has worked well, JCOPE is not made up of appointees from all three branches of state government. Other state commissions include appointees of their Chief Judge, but the JCOPE/LEC structure does not. Under the Anti-Corruption Amendment, a majority of the members of the new Commission would be appointed by the Judiciary, which is not disciplined by the Commission but by the Commission on Judicial Conduct.
Moreover, unlike the Commission on Judicial Conduct, JCOPE does not operate by majority vote. As few as two of the Governor’s appointees to the 14-member Commission can veto an investigation or a finding of violation. JCOPE has no rule barring ex parte contact by a Commissioner with that Commissioner’s appointing authority, thereby enhancing the appearance and possibility of political control. It has no power even to call for the termination of a state official or employee, and no power to impose any form of sanction on a member of the Legislature or a legislative employee. JCOPE is not guaranteed secure funding, which guarantee is necessary to secure its independence. As an enforcement mechanism, the JCOPE/LEC structure has accomplished nothing substantial to stem the epidemic of state government corruption in New York.
We believe that a reasonable perception has developed that JCOPE is controlled by those it is supposed to regulate, including the Governor. In addition to the signs of lack of independence mentioned above, this perception is fueled by the fact that the chair is appointed by the Governor and serves at his or her pleasure. We believe that the Chair should be elected by the Commission.
In all events, to overcome this reasonable perception and enhance the credibility of ethics enforcement in New York, candidates for Governor should in our judgment be willing to give up a degree of gubernatorial control and bind themselves and their administration to robust regulation by the new Commission, up to and including the point of being removed from office for egregious misconduct. The Chief Judge can be removed by the Commission on Judicial Conduct subject to judicial review, and we see no reason why the statewide elected officials should not be subjected to similar consequences in extreme cases. The proposal also accounts for the fact that they are elected by giving either house of the Legislature the power to override a censure or removal decision.
The Anti-Corruption Amendment would also transfer the administration of the State’s campaign finance laws to the new non-partisan and independent Commission instead of the New York State Board of Elections. Large campaign contributions can be a potent source of conflicts of interest, and nearly half the states give the campaign finance responsibility to their ethics commission.
In order that we may decide what position to take with respect to your candidacy, please respond to these questions.
- Will you actively support a concurrent resolution substantially in the form of the Anti-Corruption Amendment? Yes/No
- If your answer to the above question is no, please specify any changes that would allow you to support the Anti-Corruption Amendment.
In deciding what position to take with respect to your candidacy, we will treat a failure to respond to these questions as evidencing opposition to an Anti-Corruption Amendment in any form.
Under New York law, we are required to advise the New York State Board of Elections whether we intend to oppose your candidacy. We intend to do that within one week from receipt of all your responses or by May 14, whichever is earlier. Accordingly, the deadline for your response is May 7. You should email your response to firstname.lastname@example.org.
Committee to Reform the State Constitution
By: __/S/_______________________, Manager
Evan A. Davis
Press release 5/20/2018 Announcing Unwillingness to Respond
REFORM GROUP SAYS NO CANDIDATE FOR GOVERNOR IS WILLING TO FIGHT CORRUPTION
Ethical and other rules barring misconduct are only as good as the mechanism to enforce those rules. Despite the fact that the current enforcement mechanism is totally inadequate, none of the candidates for Governor have as yet shown any interest in reform of that enforcement mechanism. As a result, at this time none of those candidates can be considered seriously committed to fighting corruption.
To be clear, the current ethics enforcement mechanism, which consists of the Joint Commission on Public Ethics and the Legislative Ethics Commission, is widely viewed as ineffective. These bodies are appointed solely by the Governor and the Legislative Leaders with no appointees by the Judiciary, a practice followed in other states to promote independence.
The JCOPE chair serves at the pleasure of the Governor and the legislative leaders get to decide whether there is cause to remove their appointees. As few as two of the 14 members JCOPE can veto an investigation or an adverse finding and JCOPE has no power to admonish, censure or remove an offender or even to recommend such a course of action.
The Committee to Reform the State Constitution, an independent expenditure committee registered with the New York State Board of Elections, has asked all the candidates for Governor whether they support a constitutional amendment based on the Commission on Judicial Conduct already established in the Constitution and if not, what changes would have to be made to secure their support.
Despite being told that a failure to respond would be taken as a lack of interest in JCOPE/LEC reform, none of the candidates responded.
The Committee will inquire again in a few months. Because JCOPE/LEC reform is job one in fighting corruption, the Committee must this time conclude that any gubernatorial candidate talk about fighting corruption is so much hot air and not backed by a meaningful substantive agenda.
Concurrent Resolutions have recently been introduced in both Houses of the Legislature to propose to the people an Amendment to the State Constitution as urged by the Committee. S 8309, A 10651.
The principal features of the proposed constitutional 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, a constitutional body to sanction judicial misconduct that has worked well, Commissioners would be appointed by all three branches of government. A majority of the members would be appointed by the judiciary 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. Nearly half the states give the campaign finance responsibility to their ethics commission.
- 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.
- Sexual harassment would be barred as ethical misconduct.
The Committee to Reform the State Constitution is a body composed of civic leaders from across the State. Its website in www.committee2reform.org.
 “Actively support” means a commitment to submit an amendment substantially in the form of the Anti-Corruption Amendment as a Governor’s Program Proposal and to place it near the top of the agenda at every leaders meeting until passed.