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.