Conflicts Board Requests New Rules
August 3rd, 2009
Watch out gift-givers, if the Conflicts of Interest Board has its way you too could get fined for giving a gift to a public official (currently only the official gets fined).
That is just one of the new rules the board proposed today, which also urge the city to give the board its own investigative authority and budgetary powers. The rules were sent to Council Speaker Christine Quinn this afternoon, in hopes of getting the City Council to take up the matter. Some of the rules would have to be done via Charter Revision Commission.
The new proposal is in full after the jump.
In addition, the board is proposing to prohibit all valuable gifts to high-level public officials if it’s not from a personal acquaintance. The rules would also prohibit officials from asking people who have an issue before the agency or governing body for campaign contributions or campaign work.
For more on the Conflicts of Interest Board, see “The Conflicts at the Conflicts of Interest Board.”
Here are the new proposed rules in full:
Budget protection for the Board (§ 2602(i))
As a result of the Board’s small size and tight budget, budget cuts fall particularly heavy on the perennially underfunded Board. In addition, the Board is virtually the only City agency that regulates the conduct of the very persons who set its budget, often at the very time they are setting its budget.
Investigative authority (§ 2603(e), (f))
New York City appears to be the only large municipality in the country in which the agency that has the power to enforce the ethics code and impose fines lacks the power to investigate violations. Granting the Board investigative authority would enable it to make quick, surgical investigations, particularly in smaller cases requiring expedition.
Mandatory Chapter 68 training and education (§ 2603(b))
Although the Board is mandated to train every public servant about Chapter 68, neither public servants nor their agencies are mandated to receive such training. As a result, many public servants, and even some entire agencies, receive no training, compromising the Board’s primary mission of preventing conflicts of interest violations.
An increase in the maximum fine and provision for disgorgement of ill-gotten gains (§ 2606(b))
The maximum fine has not increased since current Chapter 68 was adopted 20 years ago and requires upward adjustment merely to keep pace with inflation. But even a $25,000 fine may be a small price to pay when the respondent’s Chapter 68 violation produces a benefit worth many times that amount, necessitating disgorgement of such unlawful gains as an additional available sanction.
Accountability of private persons and entities that induce a public servant to violate Chapter 68 (§ 2605(b))
Currently, absent outright bribery, a private person or entity that induces a public servant to violate Chapter 68 (e.g., by giving a prohibited gift) may suffer no consequences, except in certain narrow circumstances such as violations of the lobbyist gift rule. The Board thus recommends a new provision making such persons subject to enforcement actions and penalties.
Expansion of the definition of “associated persons” (§ 2601(5))
Charter § 2604(b)(3), perhaps the key provision in Chapter 68, prohibits a public servant from taking an action to benefit himself or herself or an “associated person,” a phrase that, in contrast to most other government ethics codes, does not, but should, include grandchildren, grandparents, and the immediate family members of one’s spouse or domestic partner, as well as major campaign contributors (defined as those who contribute in excess of the Campaign Finance Law limits).
A prohibition on receipt of valuable gifts by high-level public servants even where the giver does not do business with the City (§ 2604(b)(5))
When a high-level public servant, including an elected official, receives a gift from someone with whom the official has no personal connection, the clear appearance exists that the gift is given as a result of the official’s City position; such gifts should be prohibited, subject to the usual exceptions.
A prohibition on public servants requesting political campaign work or political contributions from any person with a matter before them (§§ 2604(b)(9)(c), 2604(b)(11)(d))
Such requests are inherently coercive and should be prohibited.
The addition of District Attorneys to the definition of “elected officials” (§ 2601(11))
The District Attorneys are currently subject to Chapter 68 but are exempt from certain restrictions on other elected officials, resulting in anomalous results under some provisions.
The elimination of “determinations of probable cause” from the list of public Board documents (§ 2603(h)(5))
Section 2603(h)(4) makes all enforcement documents and proceedings confidential except the final finding of violation, while § 2603(h)(5) inexplicably (and presumably inadvertently) makes “determinations of probable cause” (a pre-petition/pre-hearing document) public. Such documents, which often contain unsustained allegations, should remain confidential.
The limitation of the safe harbor for Councilmembers acting on matters affecting themselves or associated persons to voting on such matters (§ 2604(b)(3)(a))
The Board has interpreted this provision (current § 2604(b)(1)(a)) to permit Councilmembers to act on a matter that may benefit themselves or an associated person as applying only to voting, not to sponsoring or lobbying.
Amendment of the “waiver” provision to explicitly include “actions” as well as “positions” otherwise prohibited by § 2604 (§ 2604(e))
Consistent with its reading of the original intent of the waiver provision, the Board has long granted waivers under § 2604(e) to cover actions as well as positions.
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