Committee to Reform the State Constitution

Albany Times Union   April 15, 2018

COMMENTARY

Voters must demand a strong ethics watchdog

By Evan Davis

We can’t pretend New York doesn’t have a serious corruption problem. Polling shows that more than 80 percent of New Yorkers think it does. And that was before the verdict came down in the trial that convicted Joe Percoco for selling the authority and influence of his office for personal benefit.

Percoco, a former top aide to Gov. Andrew Cuomo, joins a very long list of leading state officials who have become enmeshed in official corruption scandals.

What should be done? For starters, elect leaders who will beef up ethics enforcement, because we know that vigorous and independent ethics enforcement deters corruption. This is the case largely because an ethics violation is much easier to prove than a criminal violation yet still has serious consequences.

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 — whose credibility was damaged in the middle of the trial when he was arrested for allegedly trying to rip off the hotel he was staying at.

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 violations 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. Percoco, for example, in his 2014 disclosure form filed with JCOPE listed consulting payments from a developer and payments to his wife from a sham source. With independent and vigorous enforcement, these disclosures would have led to investigation. The developer payment raised obvious questions including the time period of the consulting and its subject matter. Ethics laws would impose conflict of interest restrictions even for the period in 2014 when Percoco was running the governor’s campaign.

Diligent investigation would have uncovered the fact that the subject matter of Percoco’s consulting was state business and the real source of the payment to Percoco’s wife was a company seeking state business. With vigorous and independent ethics enforcement, the matter would then have been referred for consideration of criminal prosecution.

Ethics violations can and should have serious consequences including removal from office and a bar to holding any future position of public trust. Even a public censure can have serious consequences. A lawyer who is publicly censured for ethics violations must inform all of his or her clients. A public official who is publicly censured should similarly be required to inform constituents at his or her expense.

None of these things will ever happen in New York unless we replace the Joint Commission on Public Ethics with a truly independent single agency with all the powers it needs to be effective and jurisdiction over elected officials and employees in both the executive and legislative branches of government. For now, JCOPE is a paper tiger that no one in state government, and certainly no politically well-connected state official, need fear.

Consider this example of how JCOPE is designed to fail. Even if JCOPE had good reason to investigate Percoco, two of the governor’s appointees to the 14-member commission could have vetoed that investigation. If the governor is serious about fighting corruption, he should be the first to call for a change in JCOPE’s absurd voting procedure.

And unlike the Joint Commission on Judicial Conduct, established in the state constitution to discipline judges, JCOPE has no power publicly to censure or remove anyone.

It won’t be easy to replace JCOPE with an enforcement agency that is convincingly independent and powerful in its ability to sanction — and therefore real. Still, replacing JCOPE is supported by the Assembly Republican minority and that is a start.

Now, when deciding which candidates to help, and in the September primaries and the November general election, it will be up to the voters.

• Evan Davis served as chief counsel to former Gov. Mario M. Cuomo and currently is manager of the Committee to Reform the State Constitution, which will urge voters not to support candidates opposing needed reforms

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LoHud Journal News    March 27, 2018

Low voter turnout is both a cause of, and a contributor to, the destructive cynicism about how we govern ourselves. It is time to fix it.

The stakes are high in the April 24 special election for a state Senate vacancy in Westchester. The race has the potential to decide how the Senate will vote on badly needed state government reforms. Voters should have an opportunity to judge the two candidates in advance based on the key issues that they will champion.

Support for voting reform should be one of those litmus test issues.    

Today, the party count in the state Senate is 30 Democrats to 31 Republicans with two vacancies. One of those vacancies is likely to be filled by a Democrat.  If the vacancy in Westchester’s 37th Senate District is also won by a Democrat, then the Democrats will have a majority, 32 to 31. While it is true that the Democrats have been divided, it is also true that, if the Democrats have a majority, their desire to join together to control the Senate on critical issues will likely prove irresistible. Indeed, they have already all but agreed.

We shouldn’t, however, look at the candidates just in party terms.  It makes sense instead to judge the candidates on the issues that they publicly support where their vote on something critical will probably be decisive. That deciding vote can be cast by either a Republican or a Democrat. 

New York’s voter turnout is abominable. In the last midterm election (2014), New York was 49th in the nation. Even in last year’s competitive race for Westchester County Executive, roughly only one third of the 600,000 eligible voters turned out.

There are three easy things New York could do to increase turnout:

• Early voting (allowed in 37 states and the District of Columbia but not New York).
• Voting by mail for convenience (allowed in 27 states and the District of Columbia but not New York).
• Allowing more time to register by shortening the deadline from 25 days before the election to no more than 7 days (15 states and the District of Columbia allow even same-day registration).

These voting laws need to change. Current rules curtail voting by mail and provide only one voting day in the middle of the work and school week. It unnecessarily burdens people with children, two jobs, or long commutes. It burdens voters who are too frail to go out in bad weather or have other conflicts on Election Day. Requiring people to postmark their registration form well in advance of Election Day causes many voters to miss the boat on learning critical candidate information. 

Ultimately, accountability in a republic like ours is at the voting booth.  When turnout is low, that accountability breaks down because those activists who vote disproportionately put party interest ahead of the public interest. 

If we want to treat voting as a civic duty, as I do, then it is contrary to the basic tenets of our democracy to deliberately make it difficult to discharge that duty. That is why low turnout is both a cause of, and a contributor to, the destructive cynicism about how we govern ourselves. It is time to fix it.

The writer, a former chief counsel to Gov. Mario M. Cuomo, is manager of the Committee to Reform the State Constitution, which will urge voters not to support candidates opposing needed reform. 

Evan A. Davis