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City Bar and Common Cause/New York Find Joint Commission on Public Ethics Not Fulfilling Mission

A joint report by the New York City Bar Association and Common Cause/New York (“Review Group”) finds that the Joint Commission on Public Ethics (“JCOPE”) thus far has fallen short in meeting its mission of acting vigorously to restore public confidence in government. While performing well in promulgating regulations and providing advice, JCOPE has not persuaded the public of its independence, has appeared reactive rather than proactive, and has not made sufficient use of its statutory authority, according to the report.

“The Review Group believes that the two most important conclusions to draw from this Report are first, that JCOPE can do much more to fulfill its vital mission and second, that any reasonable attack on the conflict of interest in State Government cannot ignore the conflicts of interest created by large campaign contributions and that it is within the mandate of JCOPE under the State Code of Ethics to address this key source of conflict of interest,” the report states.

JCOPE was formed two years ago to administer and interpret the laws governing the ethics of New York public officials in the Legislative and Executive branches in the wake of a series of criminal convictions and proven acts of breach of trust. The Review Group’s report offers what it calls “Hope for JCOPE” through a number of suggestions for restoring public confidence.

Most of these recommendations do not require legislation and can be undertaken immediately. These include:

  • require disclosure of special votes that veto enforcement against the vote of a JCOPE majority
  • delegate to the executive director the ability to issue person of interest or target letters in ongoing investigations
  • to assure appearance of independence, erect a firewall between JCOPE Commissioners and the public officials who appointed them
  • issue guidance regarding the ethical duty to report criminal or fraudulent behavior of public officers
  • promulgate a lobbyist Code of Ethics
  • together with the Attorney General and the Project Sunlight office, convene a roundtable for conflict related database users and work to meet their needs
  • issue guidance that bans legislators, their staffs and their immediate families from holding office, recommending employment, or engaging in certain business dealings with state-funded not-for-profit organizations
  • provide guidance on the ethical rules applicable to dealings with large campaign contributors and their lobbyists
  • specify in that guidance a standard that prohibits the appearance of unethical conduct in selling special access to large contributors or their lobbyists
  • work to use guidance and advocacy to build a better and more ethical culture for the state of New York
  • use video messages from top state leadership to promote an ethical culture

Recommendations that would require legislation include:

  • eliminate the political party component of the special vote requirement for enforcement decisions
  • work to expand Project Sunlight beyond procurement and regulatory issues in the executive branch to include law making and the legislative branch
  • eliminate the express political test for gubernatorial appointments
  • reduce gubernatorial appointments to four
  • reduce legislative leader appointments to a total of six
  • add appointments by the Chief Judge, the Attorney General and the Comptroller
  • make the size of the Commission an odd number, namely thirteen

The report addresses concerns stemming from JCOPE’s structure, which some have called the potential “Achilles heel” of the agency. “Critics noted that even though JCOPE was the largest such ethics agency in the nation at fourteen members, the dissent of only two members can thwart the initiation of an investigation,” the report states. “Twelve commissioners can vote to proceed with an investigation of the executive branch and yet the opposition of two members can prevent it…. Governor Cuomo has acknowledged that ‘[t]o the extent that we need to make some tweaks to the law…then that’s something that needs to be entertained.’”

The report cites the Commission’s most high-profile effort to date, the investigation into sexual harassment allegations against former New York Assemblyman Vito Lopez, as the “primary example of the limitations the Commission’s structure creates for the Commission’s ability, in fact and appearance, to investigate ethical misconduct in state government with full independence.”

The report concludes, “We recognize that the remedies we are recommending constitute strong medicine. However the breach of public trust that now besets State Government requires strong medicine. It is always important to recognize the many persons of the highest integrity and commitment to public service who work in State Government. It is for their sakes as well as the public’s that the seeming unending trail of indicted and convicted legislators must end. As noted above, the Review Group, and the organizations with which it is affiliated, stand ready to help JCOPE in this task.”

The City Bar was represented in the Review Group by its Government Ethics Committee, chaired by Jeremy Feigelson. The Subcommittee that worked on the report was co-chaired by Evan A. Davis and Daniel E. Karson.

The report may be read here: http://bit.ly/1nUYutV

 

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