Gotham Gazette https://www.gothamgazette.com/component/tags/tag/580 Thu, 20 Jun 2019 21:37:22 +0000 Joomla! - Open Source Content Management en-gb webmaster@gothamgazette.com (Webmaster) 'So Completely Compromised': New York Watchdog Agencies Have a Credibility Problem https://www.gothamgazette.com/state/8554-new-york-watchdog-agencies-have-credibility-problem https://www.gothamgazette.com/state/8554-new-york-watchdog-agencies-have-credibility-problem mayor commissioner exec

(photo: Edwin J. Torres/ Mayoral Photography Office)


In January, the state Joint Commission on Public Ethics, a governmental watchdog agency, revealed that it had held a closed-door vote on a potential ethics investigation into a former top aide to Governor Andrew Cuomo. The aide, Joe Percoco, was convicted on federal corruption charges in a highly publicized trial that also laid bare work he had done from his executive chamber office while on leave to work for the governor’s campaign.

Despite the obvious appearance of an ethics violation, JCOPE only held a vote on an investigation when its commissioners’ hands were forced through a lawsuit -- and even then, the outcome remains shrouded in mystery because JCOPE refuses to announce it to the public.

Created in 2011 to monitor the behavior of more than 250,000 public officials and to enforce state lobbying laws, JCOPE has become the epitome of New York State’s lax ethical oversight, and the agency’s opacity is a source of widespread consternation. As is the case with other watchdog entities, JCOPE has to balance the privacy of individuals against its duty to inform the public and instill confidence that it is effectively carrying out its work.

By design, many of these agencies are not required to inform the public about the complaints they receive, or are prohibited from doing so to prevent reputational harm against individuals or entities that may be the subject of a complaint. But good government groups say that must change in order to build trust in institutions, and that the public would be better served if agencies provided more transparency about how they handle complaints and report on outcomes of investigations.

JCOPE is just one of several governmental watchdog entities in New York, but its lack of disclosure is not unique. Among a variety of governmental bodies with mandates to scrutinize elections violations, nonprofit fundraising, and public integrity, there’s no standard protocol for reporting on the number and status of complaints received, the investigations initiated or concluded, or the final disposition and enforcement actions taken.

It’s true in many cases at both the state and city levels: other such entities include the State Board of Elections, the Inspector General, the New York City Department of Investigation, and the New York City Conflicts of Interest Board.

In New York City, for instance, recent news reports revealed that though two agencies had concluded that Mayor Bill de Blasio’s fundraising practices during his first term violated guidance about conflicts of interest rules, the mayor did not face any punitive action and neither agency -- the Conflicts of Interest Board and Department of Investigation -- publicly disclosed that it had ended its investigation or the results. Even after news outlets reported on the general conclusions of those agencies, the specific reports and their findings were either heavily redacted or kept secret.

Government reform advocates say some agencies aren’t following the letter of the law in reporting on their work, and they argue that all the agencies, either proactively or through legal mandates, should be releasing more information than they currently do.

“We feel like there’s inconsistency across the many enforcement entities in New York State as to how they make known, or don’t make known, the way they process complaints,” said Alex Camarda, senior policy advisor for Reinvent Albany, a good government group. “And generally speaking we’d like to see more transparency. At the very least, complainants ought to be told what the outcome is of their complaint after a period of time has passed, if not immediately.

This criticism rings particularly true in a recent case regarding an allegation of sexual misconduct against former State Senator Jeff Klein by a former aide, Erica Vladimer. JCOPE has refused to reveal the status of its investigation into the matter -- even to Vladimer, she has said.  

Camarda acknowledged that agencies have a duty to maintain confidentiality. Accusations of impropriety against an elected official, public servant, or candidate for office could serve to harm them if they are publicized but later found untrue. This would be particularly important in the case of spurious complaints, which agencies regularly receive and dismiss on a lack of merit.

But, Camarda said, “that hasn’t been the problem in New York State.”

“In this state, we’ve erred more on the side of protecting the reputation of the accused rather than transparency of complaints, and I think the pendulum needs to swing in the other direction, towards transparency,” he added. “The problem has not been that people are wrongly accused and their reputation is sullied as a result. The problem has been lack of enforcement. So we need to compensate for that by having greater transparency with how complaints are handled and making that known to the complainant and to the public.”

Joint Commission on Public Ethics (JCOPE)
The lawsuit over the Percoco matter, brought by New York State Republican Party Chair Ed Cox, was not the first time JCOPE was compelled by the courts to vote on an issue. In 2014, Donald Trump sued the agency to hold a vote on his complaint against then-Attorney General Eric Schneiderman, whose office was suing Trump over fraud claims related to the now-defunct Trump University.

In both cases, JCOPE did not hold a vote within 60 days of receiving a complaint, as required under state law, raising questions about how regularly it flouts requirements. Even after holding a vote, JCOPE doesn’t disclose whether it voted to open an investigation -- the agency is exempt from the state’s Freedom of Information Law, as well as from the Open Meetings Law.   

Under the law, JCOPE only makes public the results of a Substantial Basis Investigation, which involves a more detailed probe of a particular complaint. (In case the complaint involves a member of or candidate for state Legislature, or a legislative employee, the agency isn’t authorized to impose any penalties, however, and refers the matter to the Legislative Ethics Commission.) Substantial basis investigation reports are also published online with related documents detailing the complaint and settlement reached.

While it has a broad mandate, in 2018 the commission processed 257 matters across a range of possible violations including conflicts of interest, nepotism, improper gifts, failure to file financial disclosure statements, and post-employment restrictions, according to its annual report.

Those 257 matters resulted in 27 investigations initiated. By the end of 2018, JCOPE had 38 open investigations and 93 matters pending review. The report only includes data in the aggregate, which, Camarda of Reinvent Albany pointed out, is in fact more transparent than other agencies but does not seem to fully comply with the law, which requires the agency to report a list of complaints and referrals received alleging violations, and the status of each complaint.

JCOPE spokesperson Walter McClure disagreed with this reading of the law, saying the agency cannot release certain information “because it would be providing confidential information to people who should not have access to it….[A]nything that has to do with an investigative matter is subject to the confidentiality provision and we cannot make it public unless or until the Commission votes to allow that.”

“This is just one small niche issue in a bigger enforcement system that we believe is a problem, and that is, we file these complaints, they seem to go into a black hole and we don’t get a lot of information back as to what happens, at any point,” Camarda said.

Reinvent Albany was among several civic organizations that sent a letter to Governor Cuomo and state legislative leaders on May 16, calling for an overhaul of ethics enforcement by amending the state constitution. The coalition of groups -- including NYPIRG, Citizens Union, New York City Bar Association, Common Cause NY, and others -- surveyed ethics agencies in 50 states and found that New York’s agencies, including JCOPE, are “among the very weakest in the nation” on independence and public accountability. “Few, if any, other states have ethics watchdogs so completely compromised by lack of independence, partisanship, lack of transparency and the other failings described,” the survey noted.

As the groups noted, JCOPE’s structure and independence, or lack thereof, have been a perennial cause for frustration. The agency’s commissioners are appointed by the state Legislature and the governor, who also chooses its chair. The executive director is appointed by a majority of the commissioners. The agency’s three executive directors so far have been close allies of Cuomo. Seth Agata, who was previously counsel to the governor, currently holds the position but recently announced that he would be departing for a job with a law firm.

The call for an ethics agency overhaul has been echoed by state lawmakers. Among them is state Senator Liz Krueger, a Manhattan Democrat who has proposed an amendment to the state constitution to replace JCOPE with a ‘truly independent’ state ethics commission. [Read: ‘It’s just not designed to do its job’: Will New York reform its state ethics agency?]

“[O]ur official position has been, and remains, that when it comes to calls for reform/changes to the Commission and the proposed constitutional amendment that calls for a replacement for the Commission, it is up to the Executive and the Legislature to make decisions about the laws that govern what we do and how we do it,” said McClure, in response, noting that JCOPE itself has made legislative recommendations in the past to strengthen its authority.

State Board of Elections
In 2014, the state election law was amended to create a new independent enforcement division headed by a chief enforcement counsel, a role that has only been held by Risa Sugarman, who was nominated by the governor and confirmed by the state Legislature. The creation of the division and Sugarman’s appointment was meant to depoliticize the agency, whose commissioners are appointed on party lines, and lend credibility to the BOE’s oversight of election and campaign finance violations.

As with JCOPE, the BOE’s enforcement division has not been immune from criticism that it has failed to fulfil its obligations under the law and has shown minimal investigative activity. Last year, in an apparent power grab, the BOE commissioners voted to curtail the enforcement counsel’s power to issue subpoenas, and mandated that the division issue regular reports on investigations as well as complete them within six months.

At the time, BOE’s Democratic co-chair Douglas Kellner said it was prompted by the enforcement counsel’s failure to adequately investigate election law violations, despite thousands of referrals particularly related to candidates failing to file campaign finance disclosures. “I think it's pretty clear that I'm fed up with the current process of the enforcement unit,” Kellner said at the time.

At the root of that issue is the fact that the enforcement counsel’s unit is separate from the campaign finance compliance unit, which essentially keeps two oversight roles removed from each other. At public hearings, the compliance unit’s leadership has aired complaints that it receives little to no information from the enforcement unit.

“The BOE is its own strange animal,” said Camarda, of that structure. He added, “It’s the same problem we’re discussing as a good government group writ large but they can’t even find out within their own agency. And [Sugarman] argues that that’s an imposition on her work and the confidentiality of her work. It seems to me in the law and in the rules that the enforcement counsel is required to provide some transparency around the complaints that are received and how they’re handled.”

Reinvent Albany opposed the new restrictions on Sugarman’s subpoena authority but was supportive of the expanded disclosure on investigations and complaints. But, the reports -- with significant detail of complaints, investigations, and dispositions -- are only required to be sent to the BOE commissioners and co-executive directors. Reinvent Albany has pushed the Board to make the reports more broadly available to the public.

The numbers on the BOE’s 2017 annual report, the latest one available, bear out some of the critiques. The report notes that the division received 463 emailed questions and complaints from the public in the 2017 calendar year, but it does not mention how many complaints were received through telephone, snail mail, or other means.

Violations of state campaign finance law appear rampant but the BOE seems unable to properly uphold its mandate. In 2017, the enforcement division received 3,984 referrals from the compliance unit for non-filing of disclosures. By the end of the year, 2,880 still owed reports to the BOE. Additionally, 597 referrals were made for deficient filers who failed to comply after being informed that their disclosures were deficient. Between 2014 and 2017, the report noted, 2,101 referrals of deficient filers were made to the enforcement division; 329 were amended to fix deficiencies; one was deleted and 1,066 remained unresolved.

In total, the division opened 52 formal investigations and received authorization to issue subpoenas in four cases. Sugarman referred one case for further investigation and potential prosecution. And the division filed only six matters to go through a civil enforcement administrative hearing process.

In an email, BOE’s Sugarman declined to comment for this story.  

State Inspector General
The State Inspector General, a gubernatorial appointee, is charged with oversight of the state executive branch including every agency, department, division, commission, board, public authority, and public benefit corporation.

The IG’s office investigates allegations of criminal activity, corruption, and fraud and regularly makes referrals for criminal prosecution. According to the law, the office informs heads of agencies about investigative proceedings and releases public reports “as appropriate and to the extent permitted by law, subject to redaction to protect the confidentiality of witnesses.” The office often recommends reforms at state agencies and oversees their implementation.

Two other offices under the IG perform investigative roles dedicated to specific agencies and their services and purviews -- the Office of the Welfare Inspector General (OWIG), which oversees the provision of social services at the state and local level; and the Office of the Workers' Compensation Fraud Inspector General (WCFIG), which investigates violations of workers’ compensation laws (it also monitors the implementation of the state’s paid family leave program). Both these offices release annual reports detailing enforcement activity.

Until recently, Cuomo appointee Catherine Leahy Scott was in charge of all three offices. In January, Cuomo replaced her in the IG’s office with Letizia Tagliafierro, a longtime aide and former executive director of JCOPE. Leahy Scott continues to serve as acting welfare inspector general.

Among the three offices, the Inspector General alone does not release an annual report or make public the number of complaints received and investigated in a year.

In 2017, according to the latest annual report, the OWIG processed 650 complaints related to public assistance fraud, up from 562 complaints in 2016, about a 16 percent increase. The office’s investigations found more than $1.3 million in fraud and improper social service benefits payments. Twenty individuals were criminally prosecuted.

The WCFIG, in 2017, received 2,369 complaints, a more than 50 percent increase from 2016 (because of a new partnership with the National Insurance Crime Bureau, which made a large number of referrals in one go). Investigations found more than $1,043,000 in fraud, resulting in  23 arrests and 38 criminal cases.

Though the IG’s office itself puts out public releases about the conclusions of investigations resulting in criminal charges, the office does not publish an annual report summarizing its enforcement activity. A spokesperson for the IG’s office noted that the office publishes information as required by statute and that each complaint is thoroughly reviewed.

New York City Department of Investigation (DOI)
The DOI is the independent watchdog that monitors city agencies and has broad authority to conduct criminal investigations and make arrests and prosecution referrals. The agency, whose head is nominated by the mayor and approved by the City Council, conducts background checks of city employees, investigates fraud and corruption, monitors firms that receive large city contracts, and conducts investigations for the Conflicts of Interest Board. DOI also examines systemic issues at agencies and recommends reforms to reduce inefficiency and the risk of corruption.

As with other enforcement agencies, DOI has strict confidentiality rules and does not disclose directly whether it is conducting an investigation based on a complaint. But the agency does annually report, in the aggregate, on the number of complaints received, investigated and closed.

Those numbers are published in the Mayor’s Management Report, tracking enforcement activity by the fiscal year, as well as in an end-of-calendar-year statistics report. In fiscal year 2018, for instance, DOI received 13,073 complaints, made 2,540 policy change recommendations, and conducted 389 lectures on corruption prevention and whistleblowers. The agency made 762 referrals for civil and administrative action, 860 referrals for criminal prosecution, and its investigations led to 661 arrests.

The Department also issues detailed public reports on investigations that are concluded.

“Complaints made to the New York City Department of Investigation are kept confidential to safeguard the integrity of DOI investigations and protect the individuals filing those complaints,” said a DOI spokesperson, in an email. “DOI is committed to a transparent, accountable government, frequently proactively publishing findings of closed investigations through its public reports, and adhering to the Freedom of Information Law, taking requests for documents seriously and following the law in responding to them.”

New York City Conflicts of Interest Board
As the investigation into Mayor de Blasio showed, the COIB can be an opaque agency at times. De Blasio’s fundraising for an outside nonprofit from individuals who had business with the city triggered investigations at the city, state, and federal level. The state and federal cases closed without any criminal charges. Recently, THE CITY revealed that DOI concluded the mayor had violated COIB guidance and run afoul of conflicts of interest and ethics laws.

But COIB could not say whether it took any action and could not publicly disclose either the status of the investigation or the conclusion reached by DOI. Last week, the Board formally created a rule addressing the type of fundraising activity the mayor was found to have engaged in, releasing a statement to clarify its position. The City Charter, which governs the COIB, places strict confidentiality requirements on the agency, so much so that it cannot even confirm nor deny if a complaint has been filed or investigated.  

“It was good that they put out that statement because ultimately it did clear things up,” said Camarda of the recent developments involving de Blasio, “but it points to the problem, which is, we could not actually tell as a good government group that follows these things, why they did not assess penalties against de Blasio.”

On the other hand, COIB does release aggregate data on enforcement action taken each year in its annual report. In 2018, for instance, the agency opened 392 cases, closed 404 cases, imposed fines in 92 matters, issued 6 public warning letter and 22 private warning letters, made 76 referrals to DOI and received 150 reports from DOI. The agency also discloses summaries in the annual report of the types of enforcement actions taken each year, and publicly releases the full details of the disposition of a matter, including individuals' names and the actions taken by them. 

[Read: De Blasio Fundraising Exposed Grey Area for Ethics Board]

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Note - This article has been updated to clarify that COIB does publicly disclose names of individuals and the full details of a disposition of a matter. 

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'So Completely Compromised': New York Watchdog Agencies Have a Credibility Problem Tue, 28 May 2019 04:00:00 +0000
De Blasio Fundraising Exposed Grey Area for Ethics Board https://www.gothamgazette.com/city/8531-de-blasio-fundraising-violation-exposed-grey-area-for-ethics-board https://www.gothamgazette.com/city/8531-de-blasio-fundraising-violation-exposed-grey-area-for-ethics-board mayor bdb fl chir

(photo: Michael Appleton/Mayoral Photography)


In the last three years, Mayor Bill de Blasio has been investigated by law enforcement and oversight entities at the city, state, and federal levels for soliciting donations from people seeking favors from his administration. While several of the investigations have concluded without chargers, investigators and others have criticized the mayor for shirking conflicts of interest and campaign finance rules.

In the case of the city investigation, conducted by the Department of Investigation (DOI) and referred to the Conflicts of Interest Board (COIB), it is hard for the public to know just how close to breaking the law the board felt he came.

What is known is that DOI investigated thoroughly and found the mayor had violated guidance from the COIB, the agency tasked with enforcing the city’s ethics statute, when he raised money for a political nonprofit from individuals with or seeking city business; and that COIB, despite the DOI’s substantiation of the claim, did not take formal, public action against the mayor. It has also become clear that de Blasio is unwilling to be fully transparent about his communications with COIB, and that the mayor’s case has led COIB to adopt a new rule around the type of fundraising he did.

For serious violations of the conflicts of interest law, COIB has a range of enforcement options, from issuing public admonishments and imposing fines, to negotiating discipline, including termination, with the employee’s agency. But for minor violations or when something in the law prevents prosecution, which includes the grey area the mayor has operated in, COIB can only respond from a grey area of its own.

In the absence of charges, the DOI referral may still have resulted in what COIB refers to as a “private warning letter,” a tool it employs outside its formal adjudication process, sent to the mayor. Strict privacy provisions in the city charter and due process concerns prevent the board from discussing it, and the mayor, who is at liberty to be fully transparent, refuses to answer questions about the recently-revealed investigation into his behavior, including the DOI findings and potential COIB correspondence.

Richard Briffault, the COIB chair, told the New York Times that the board was prevented from issuing a fine or a public reprimand in de Blasio’s case because of restrictions in the ethics law. (Two other penalties -- joining a settlement with the violator’s employing agency, and ordering the employee to pay back any financial gain -- would not apply to the mayor’s fundraising.)

De Blasio has refused to speak on the matter since the latest news was revealed, first in reporting by The City, only saying that he believes he has sufficiently addressed an issue that is now past, without acknowledging the new information about the DOI referral -- including findings of wrongdoing by him -- or the question of whether he received a private warning letter from COIB.

When pressed yet again by reporters at an unrelated news conference last week, the mayor maintained his stance, saying, “I’m just not going over it. Every investigation was closed, no further action was taken, and the entity involved is defunct.”

The Conflicts of Interest Board cannot reveal whether any action is taking place or took place unless it formally determines the law has been violated. That would require the board to fully adjudicate a case and issue a public determination including action taken, which it typically does multiple times a month, often for cases in which a city employee misuses city resources, like using official email accounts for personal business or having outside employment without a waiver from the COIB.

It appears the type of fundraising de Blasio did through his now-shuttered non-profit did not meet the legal requirements for a formal penalty, even though he ignored COIB guidance.

A new rule issued by COIB last week now makes the type of fundraising de Blasio carried out -- soliciting donations to government-affiliated nonprofits from people and companies with pending city business -- a punishable offense.

The rule is based on two COIB advisory opinions from 2003 and 2008, respectively, which were cited in the DOI referral; “an advisory opinion is not a ‘rule of the Board,’” according to a statement that accompanied the new rule, and as such cannot lead to penalty on its own, even if violated.

The episode casts light on how far New York City’s conflicts of interest law goes and what COIB is able to do to enforce it. The de Blasio case has shown challenges around how to bring the ethical underpinnings of the law to bear in cases where there is not a well-established precedent or official proscription.

“The Board has now acted”
In the absence of formal enforcement the board has, since 1995, retained the option of issuing a private warning letter to city employees who have come close to violating the conflicts of interest law, but whose behavior fails to satisfy some element of it.

A COIB spokesperson provided Gotham Gazette a list of four instances in which a private warning letter might be used, including when there is not enough evidence to support a violation, or when “there is some legal reason why the Board is unable to engage in a formal enforcement action.”

Also on the list of instances are when the public servant has already been disciplined by their employing agency and when “a current or former public servant has allegedly committed a minor or isolated violation, particularly if self-reported, e.g., a public servant sent a single email using his City email account related to his private business.”

The latter two are unlikely to be the case for de Blasio and the Campaign for One New York, given that de Blasio does not appear to have ever been formally disciplined, and the fact that his non-profit raised approximately $4 million and solicited donations from people with business before the city on multiple occasions, according to the DOI report.

The conflicts of interest law was enshrined in the city charter in 1990, and there is nothing in it that mentions private or confidential warning letters.

In 1995, while its enforcement staff was severely diminished and facing a mounting backlog of cases, COIB was employing letter notices to ensure compliance in financial disclosure matters. The same year, the board issued six “informal warning[s] or other confidential letter[s]” for the first time. Also that year, the board established a formal liaison with the Department of Investigation to bolster the enforcement work of its anemic staff.

For the past decade COIB has sent between 46 and 88 private warning letters per year, according to its annual report. In 2018, the year the DOI referred the Campaign for One New York case to COIB, 62 private warning letters were sent.

“It’s questionable that an agency can actually create policy without promulgating rules because it’s required that they go through a public process where there’s a hearing and people have input,” Alex Camarda of Reinvent Albany, a government watchdog organization, told Gotham Gazette.

But the private warning letter appears to be an informal tool COIB uses to ensure the law is followed, and tracked every year in the board’s annual report.

“A private warning letter is simply a letter written by the Board to a current or former public servant or lobbyist to educate the recipient about the law relevant to his or her alleged conduct,” the COIB spokesperson told Gotham Gazette in an email.

In COIB’s Monograph, which provides commentary on the conflicts of interest law, it states that private warning letters “sometimes prove useful in the enforcement process if a public servant who has been so warned commits another offense.”

Going forward, the new COIB rule will make soliciting donations from entities with city business to nonprofits affiliated with the city or a city official subject to the ethics law. Violations could result in fines of up to $25,000, the highest the board can impose.

But the new rule is not likely to apply to de Blasio’s past actions. In the COIB statement announcing the rule, the board said, “Without any ‘rule of the Board’ governing official fundraising, the Board is prohibited by the Charter from imposing a penalty on a public servant” who violated the Charter’s “catch-all” provision related to conflicts with one’s official duties. In the case of fundraising for nonprofits affiliated with a city agency or public servant, the statement says, “The Board has now acted to fill this gap.”

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by Ethan Geringer-Sameth, reporter, Gotham Gazette      

Read more by this writer.

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De Blasio Fundraising Exposed Grey Area for Ethics Board Wed, 15 May 2019 04:00:00 +0000
Charter Revision Commission Hears Expert Testimony on Conflicts of Interest and Chief Diversity Officer https://www.gothamgazette.com/city/8365-charter-revision-commission-hears-expert-testimony-on-conflicts-of-interest-and-chief-diversity-officer https://www.gothamgazette.com/city/8365-charter-revision-commission-hears-expert-testimony-on-conflicts-of-interest-and-chief-diversity-officer gg cc h

(photo: Sofie Hecht/Gotham Gazette)


On Thursday evening, the 2019 Charter Revision Commission heard from experts in city government and activist circles to discuss possible charter amendments that could enhance precautionary measures against conflicts of interest in city government, and the potential mandated addition of a chief diversity officer in the mayor’s office, at mayoral agencies, and elsewhere. The push for adding chief diversity officers is being led by city Comptroller Scott Stringer, who created such a position in his office and has made the effort one of his top priorities among many suggested charter changes.

After having held a series of open public hearings around the city, the 2019 Charter Revision Commission announced its focus areas and is holding a series of “expert” hearings as it considers major potential overhauls to the city charter for the first time in 30 years. The commission will submit revisions to the city’s foundational laws before voters this November, though the proposals will undergo several rounds of public input before reaching the ballot.

The commission has already heard from experts on election reform, police accountability, and city budgeting and contracting. The commissioners on the charter revision commission were appointed by a variety of elected leaders, including the mayor, who had the most appointments but not a majority, the comptroller, the public advocate, the City Council speaker, and each of the borough presidents.

The charter currently aims to stamp out corruption in part through the Conflict of Interest Board (COIB), which consists of five mayoral appointees approved by City Council and a staff that executes trainings and investigations, among other tasks.

The COIB currently has four primary goals: educating public servants about the city’s rules on conflicts of interest as delineated in Chapter 68 of the charter, offering advice regarding public servants’ interpretation of Chapter 68 and the Lobbyist Gift Law, prosecuting politicians who break these rules, and enforcing the Annual Disclosure Law that requires yearly financial disclosures from all city politicians. The COIB oversees the mandate of a one-year freeze on politicians’ ability to lobby their former agency once they leave office.

Current COIB Chair Richard Briffault was the only expert on conflicts of interest and corruption to speak before the commission. He did not propose any amendments to the charter, but fielded questions from the commissioners and explained why he believes the COIB is working well in its current form.

“Our small size facilitates deliberation and action. The combination of mayoral appointment and Council confirmation...assures that any issues about any nomination can be publicly aired,” he explained.

Charter Commissioner Sal Albanese -- a former City Council member and three-time mayoral candidate, including in the 2017 Democratic primary against Mayor Bill de Blasio, who was appointed to the commission by Brooklyn Borough President Eric Adams -- asked if serving under mayoral appointment poses an inherent conflict of interest, implying that the current COIB structure incentivizes protection of the mayor. Briffault said he understood the concern, but explained that diversifying appointment power could enhance the notion that a COIB member should serve the politician who appointed them. A standard of mayoral appointees, Briffault argued, promotes a sense of cohesion within the body.

Briffault also cautioned against changing the COIB to operate more like the Joint Commission on Public Ethics, the highly-controversial state body that many argue is ineffective, and which draws appointments from the governor and legislative leaders.

Commission Chair Gail Benjamin, appointed by City Council Speaker Corey Johnson, echoed Albanese’s concerns, asking Briffault if the COIB would benefit by drawing members from a wider variety of employment sectors. Briffault conceded that attorneys currently comprise the majority of the COIB, if not its entirety. “The plus side [to that change] is guaranteeing that different perspectives are there,” he said. “But a lot of what we do is interpret and enforce the law.”

Albanese further inquired about the COIB’s opinion regarding the one-year lobbying ban on public servants leaving office, suggesting that a five-year or even lifetime ban would better root out corruption. Briffault declined to take a position on the matter. “We’re not policy-makers,” he said. But he did affirm the current yearlong measure, positing that a longer ban might “discourage high-quality people from going into government.”

While Albanese expressed concern about lobbying power and methods of circumventing the Lobbying Gift Law, Briffault maintained that certain actions like campaign donation bundling cannot be regulated as lobbying.

Commissioner Stephen Fiala asked if Briffault sought to increase the COIB’s relatively small annual budget of $2.5 million. Briffault remained ambivalent, though he said that either consistently re-adjusting the budget for inflation or tying the budget to a percentage of that of City Council would benefit the COIB. In recent years COIB has pushed for more funding during City Council budget hearings, with representatives explaining that it is challenging to perform all of the trainings and other tasks it has given its staffing levels and high turnover based on lower-than-ideal pay.

The commission also heard from experts regarding the installation of a chief diversity officer within the mayor’s office and deputy officers in each city agency to oversee the Women and Minority-Owned Business Enterprise program (MWBE). While all experts and commissioners agreed on the program’s importance, contention arose over whether the chief diversity officer program should be codified into the city charter when an MWBE system has already been legislated into effect with Local Law 12.

Reverend Jacques Andre DeGraff and Wendy Garcia, chief diversity officer for the office of city Comptroller Scott Stringer, both argued in favor of codification, while director of the Mayor’s Office of MWBEs and Dawn Pinnock, executive deputy commissioner of people operations and risk management at the Department of Citywide Administrative Services, argued that Local Law 12 should stand on its own. Andrea Bowen, an transgender and gender-nonconforming rights activist, did not take a clear stance on the issue, but pushed the commission to consider ways to codify increased hiring of trans folks around the city.

The commission was supposed to hear concerns about the sprawling public pension system, but experts from Comptroller Stringer’s office, who oversee the city pension system, were unable to attend, frustrating Albanese who requested time at the start of the session to rail against the absence of Stringer and his staff. “He’s missing in action and so is his staff,” Albanese said. “It’s a politically tough issue, but that’s what you get paid for as an elected official.”

The next charter commission hearing will take place on Monday, March 18, on other issues of governance, including the role of the public advocate.

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Charter Revision Commission Hears Expert Testimony on Conflicts of Interest and Chief Diversity Officer Sun, 17 Mar 2019 04:00:00 +0000
City Council Passes Legislation Authorizing Electeds to Create Legal Defense Funds https://www.gothamgazette.com/city/8224-city-council-set-to-pass-legislation-authorizing-legal-defense-funds https://www.gothamgazette.com/city/8224-city-council-set-to-pass-legislation-authorizing-legal-defense-funds mayorcouncilfisacl

(Photo: Benjamin Kanter/Mayoral Photo Office)


Update: This article was published on Wednesday and the City Council passed this legislation on Thursday afternoon with a 42-5 vote. Council Members Joe Borelli,  Chaim Deutsch, Steven Matteo, Carlos Menchaca and Eric ulrich voted against the bill. Council Member Jumaane Williams abstained from the vote. 

A bill that would allow elected officials to set up trusts to raise money from private sources to cover legal fees is set to be approved by the New York City Council on Thursday.

The legislation, sponsored by City Council Member Stephen Levin, would allow city officials to raise as much as $5,000 from individual donors through trusts, to pay for legal fees arising from criminal or civil investigations that are unrelated to their governmental duties, such as those involving campaign activity (legal fees related to government duties can be covered by public funds).

The trusts would have to file detailed quarterly reports on fundraising and spending with the city Conflicts of Interest Board (COIB), and would be prohibited from taking donations from lobbyists, corporations, LLCs, and people doing business with the city. The reports will be posted publicly online.

Levin’s bill is meant to fill a gap in the city’s legal framework that allows elected officials to use taxpayer funds to cover their defense in investigations arising from their official duties, but not in the case of non-governmental activity. Mayor Bill de Blasio found that out the hard way after facing dual state and federal probes into his fundraising activities through outside nonprofit groups and, in one, related government actions, which eventually led to no charges being filed but left the mayor with hefty legal fees running into the hundreds of thousands, even after he reversed course to utilize public funds to cover the bulk of over $2 million in fees related to the federal inquiry of whether he directed government favors based on campaign donations.

The mayor initially sought to use a legal defense fund to cover the costs but the COIB issued an advisory opinion limiting any donations to a mere $50, viewing them as gifts to an elected official which are severely limited by law. The mayor then used public funds to pay for the costs related to his government duties -- about $2.6 million -- but said he could not cover a separate bill that related to his non-governmental activity. De Blasio is not the only elected official who has had significant legal bills to deal with related to their official or non-governmental activity, he and others have pointed out.

The legislation is scheduled for a vote at a hearing of the City Council’s Governmental Operations Committee on Thursday morning, in what seems to be a rushed vote -- the bill was introduced on January 9 and the committee held an initial hearing on it last Monday, at which several questions were raised by COIB representatives and Council members. Spokespeople for Levin and for Council Speaker Corey Johnson said the bill is expected to pass through the committee and to be approved at a meeting of the full Council in the afternoon. It is very rare for any legislation at the City Council to move so quickly from introduction to passage.

The government reform community is split in its opinion on the legislation. Groups like Common Cause New York and Reinvent Albany have supported the effort to create a framework around legal defense funds, while another reform group, Citizens Union, disagrees with the very concept. In a letter of opposition sent to the Council on Wednesday, Citizens Union argued that the bill “creates the risk or appearance of corruption and undue influence, and will necessitate a complex regulatory scheme to mitigate.” The group urged the Council to, at minimum, tweak the legislation to bring donation limits in line with the lower limits that apply to campaign contributions.

The Campaign Finance Board, which monitors campaign fundraising and expenditure in municipal elections, also raised concerns about the bill. Executive Director Amy Loprest noted in her testimony before the governmental operations committee on January 14 that the legislation seems to allow officials to use trusts to pay for fines incurred from campaign finance violations. Officials can already cover those costs from their campaign accounts, which are subject to stricter fundraising limits.

“By providing certain candidates, i.e. those who are elected officials or public servants, with an additional vehicle to raise funds, Int. No. 1325 creates a path for those candidates to solicit and accept contributions from individuals that aggregate well over the existing contribution limits,” Loprest said in her testimony, urging that the bill be amended. “A clear majority of voters in last November’s Charter referendum voted to reduce these limits by more than half, with reducing the risk of corruption as the main rationale.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

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City Council Passes Legislation Authorizing Electeds to Create Legal Defense Funds Wed, 23 Jan 2019 05:00:00 +0000
With De Blasio in Debt, City Council Considers Bill to Allow ‘Legal Defense Trusts’ https://www.gothamgazette.com/city/8218-with-de-blasio-in-debt-city-council-considers-bill-to-allow-legal-defense-trusts https://www.gothamgazette.com/city/8218-with-de-blasio-in-debt-city-council-considers-bill-to-allow-legal-defense-trusts nycczerohearingsl

City Council Member Stephen Levin (photo via New York City Council)


Mayor Bill de Blasio owes hundreds of thousands of dollars to lawyers who helped him during legal investigations that ultimately resulted in no criminal charges against the mayor, but left him with bills to pay even after he reversed course and decided to use public funds to cover the portion of his legal expenses related to his government work. The remaining balance, for work related to campaign activity de Blasio was involved with that was the subject of part of the inquiries, has left de Blasio looking for a new way to pay off his debts: a legal defense fund whereby he raises money from donors willing to help him.

But, there’s been a key catch: the city does not have a legal framework for allowing public officials to create such accounts, and the advice the mayor got from the city’s Conflict of Interest Board limited him to receiving very small gifts from prospective benefactors.

Spotlighting this perceived gap in the city’s legal and campaign finance framework, de Blasio’s situation, as well as others before him, has spurred action, and the City Council has begun to consider a new law to create “legal defense trusts.”

On Monday, January 14, the Council’s Committee on Government Operations held a hearing on a bill proposed by Council Member Stephen Levin, a Brooklyn Democrat, that would allow city officials to establish such trusts for fees incurred during an investigation or trial. The bill sets a donation limit at $5,000 per donor, which is more than double the $2,000 limit for campaign contributions, with no limit on how much an official can raise in such a fund. As written, the bill bans lobbyists, persons doing business with the city, corporations, and LLCs from contributing to legal defense trusts. Additionally, any legal defense trusts would be required to make quarterly reports to the Conflict of Interest Board on their donations, which would then be made public and posted online, in a manner similar to the Campaign Finance Board’s reporting of political donations. No campaign funds could be used for a legal defense trust or vice versa and each trust will be overseen by an independent trustee.

Levin said that his bill “would bring transparency and regulation to a system that is in need of improvement.” Under the current law, city officials in civil and some criminal cases are entitled to a legal defense paid for by the city, as long as the cases relate to their public duties. However, offenses unrelated to an official’s public duties (such as political campaigns, issue advocacy, and certain administrative issues) are not paid for by the city.

Council Member Fernando Cabrera, a Bronx Democrat and the chair of the Government Operations Committee, explained it as a problem because “public officials are not highly paid and rarely independently wealthy,” and “defending against allegations and investigations for alleged wrongdoing can be financially devastating for someone of average means.”

While there have been past instances to raise the issue, the bill and committee hearing were spurred by a March 2017 advisory opinion from the city’s Conflict of Interest Board, which stated that because there was no law specifically addressing the issue, donations to a public official’s legal defense fund are considered gifts under current law and therefore limited to $50 per person. The advisory opinion came after Mayor de Blasio planned to create a legal defense fund to cover fees from state and federal investigations into his fundraising activities.

De Blasio, a second-term Democrat, was never mentioned by name during the hearing, but was frequently referred to as a “public official in the headlines,” when the advisory opinion was brought up during testimony provided by representatives of the Conflict of Interest Board.

At a press conference on January 8, de Blasio reiterated his assertion that a new legal framework was necessary. “I believe there is a need in a democratic society for this kind of mechanism, a legal defense fund is a very well established idea,” he said. He added the caveat that the bill had not gone through the legislative process, so he didn’t know the final wording. When asked if he would disclose his donors if the bill passed, he replied “absolutely” (it may be required).

While de Blasio has been earning the salaries afforded to elected officials for many years, he also owns two houses in Park Slope, Brooklyn, making him fairly wealthy. He has indicated he does not have the means to pay his legal bills, not acknowledging the possibility of leveraging his property, or at least its value. He has pointed to the larger case for legal defense funds that goes beyond his situation, something it appears City Council members and others are in agreement about. De Blasio has claimed that law enforcement investigations are part of being in political office.

At the hearing, the bill appeared to have the support of the Council members who spoke, although some had suggestions for improving it. The Conflict of Interest Board, represented at the hearing by its executive director, Carolyn Lisa Miller, and general counsel, Ethan Carrier, also expressed general support. However, Miller said there are some reservations about a section of the proposed bill that would ban the use of a defense fund from paying legal fines, but allows a fund to pay civil and administrative fines, such as Campaign Finance Board fines. Council Member Keith Powers, a Manhattan Democrat who expressed support for the concept of the bill but is undecided about its current form, asked about this section, but it was unclear if the provision would be changed.

Miller stated the COIB already does not have enough resources to do its mandated work and would require additional funds to fulfill the requirements of the bill. She estimated that an online reporting portal would cost $40,000 to set up and a few thousand each year afterwards for licensing. The bill requires quarterly reporting for defense funds and each audit would cost between $5,000 and $10,000, according to Miller’s estimate based on information from other city agencies. When asked about the number of defense funds that would be registered, she said she did not know. If the section allowing defense funds to pay campaign finance violation fines were to be included in a final bill, she estimated that as many as 50 defense funds could be established. Without that provision, she said there were only be a few, if any, per year. Many candidates for office wind up incurring some amount of fines from the Campaign Finance Board, often ranging from a few hundred dollars to a few thousand.

Council Member Kalman Yeger, a Brooklyn Democrat, said he supports the concept behind the bill, but thinks that the specifics could be improved. He questioned why the Campaign Finance Board would not allow COIB to use its reporting portal or certified auditors, which he said would save taxpayers money. According to Miller, the CFB’s portal is proprietary to that agency and cannot be used by COIB. Near the end of the hearing, Cabrera proposed that the CFB could administer the bill’s requirements instead of the COIB. Both Levin and Treyger were against this proposal, but Yeger reaffirmed that he would like a mandate included in the bill for the CFB and COIB to share resources.

While not at the hearing, watchdog group Common Cause supports the bill. In a July 2017 statement in support of legal defense trusts, Susan Lerner, the executive director of Common Cause/NY,  said that “there must and should be a process for public officials to raise funds to pay for legal bills” and “we need a policy in place to give public officials a workable solution and avoid ad hoc improvisation.” Common Cause commissioned a study of legal defense fund laws across the country and made recommendations to cover New York City’s perceived “policy gap.” Levin’s bill includes many of Common Cause’s recommendations.

The Council committee hearing on the bill only included a statement from Council Member Levin, its lead sponsor, and the representatives from COIB. The Council now has to decide whether to amend Levin’s bill and if more hearings are required to address the issues raised at the January 14 hearing. The Council will also have to decide to vote on the bill or put it on indefinite hold. If it passes committee, it will go to the full 51-member Council. Meanwhile, it is unclear when exactly Mayor de Blasio’s legal bills are due, the debt has been outstanding for quite some time now.

In response to a tweet about the bill from Politico reporter Sally Goldenberg, former City Council Member Sal Albanese, a 2013 and 2017 Democratic primary opponent of de Blasio, said that Levin and the bill’s other sponsors “should be held accountable for introducing this self serving corruption hazard” and called them “Bill de Blasio sycophants.” Levin replied to Albanese, stating that “I never spoke to [the Mayor’s Office] before introing this bill” and that “the bill itself is specifically designed to eliminate a corruption hazard.”

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by Andrew Millman, Gotham Gazette

Read more by this writer.

Ben Max contributed to this article.

Note: after initially mistaking Council Member Yeger for Treyger, this article has been corrected. It has also been updated to clarify Council Member Powers' stance on the bill.

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With De Blasio in Debt, City Council Considers Bill to Allow ‘Legal Defense Trusts’ Mon, 21 Jan 2019 05:00:00 +0000
Bill Seeks Fix to Conflicts Disclosure Deadline for Candidates https://www.gothamgazette.com/city/7011-bill-seeks-to-fix-conflicts-disclosure-deadline-for-new-york-city-candidates https://www.gothamgazette.com/city/7011-bill-seeks-to-fix-conflicts-disclosure-deadline-for-new-york-city-candidates 26412389754 0977bb6ae3 z

Council Member Ben Kallos (photo: William Alatriste)


The City Council Committee on Governmental Operations met on Monday to discuss a bill to relax the deadline for candidates seeking public office to submit disclosure reports to the Conflicts of Interest Board (COIB).

COIB is a city agency tasked with enforcing conflicts of interest laws for public officials and preempting potential conflicts for those seeking elected office. Candidates for public office are required to submit financial disclosures to the agency detailing, among other information, their sources of income, assets, liabilities, and positions held in any organization. These disclosures are then made available to the public, with the goal of ensuring that elected officials do not take office with financial ties to outside interests that may impact their decisions as public servants.

The proposed bill, Intro. 1517, would allow candidates an additional 30 days after the deadline for submitting ballot petitions to disclose their financial information. The petition submission deadline, which is July 10 this year, is the date by which candidates seeking public office must obtain a set number of signatures, depending on the office he or she is seeking, to gain ballot access. Currently, all candidates must file a disclosure report to COIB “on or before the last day of filing his or her designating petitions pursuant to the election law,” as outlined in the City Charter.

This current framework, according to Julia Lee, director of annual disclosure and special counsel at COIB, produces a “Catch-22 situation.” Since the COIB is not aware of who delivered petitions until after the petition deadline, the Board is “unable to notify candidates of their obligation to file an annual disclosure report after they are already out of compliance,” she said. The penalty for such a violation ranges from a $250 to $10,000 fine.

The bill, she said, “would remedy this problem” by giving the COIB sufficient time to notify candidates and to provide reports to the public before an election.

Extending the deadline would also level the playing field between first-time candidates and seasoned politicians, argued Council Member Ben Kallos, chair of the committee and prime sponsor of the legislation. “Experienced candidates, or candidates retaining lawyers or compliance professions, may be knowledgable about the financial disclosure deadlines,” Kallos said. “New candidates, however, may lack such experience or the funds for experienced campaign staff.”

Kallos recalled that he failed to meet the disclosure deadline himself when he ran for City Council in 2013, noting that campaign novices are often not aware of the disclosure requirements until it is too late. “There is a potential for such candidates to be disproportionately impacted and found out of compliance before they are ever notified of the requirement,” he said.

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Bill Seeks Fix to Conflicts Disclosure Deadline for Candidates Mon, 19 Jun 2017 04:00:00 +0000
Conflicts of Interest Board Opinion Could Limit Mayor's Legal Defense Fund https://www.gothamgazette.com/city/6841-conflicts-of-interest-board-opinion-could-limit-mayor-s-legal-defense-fund https://www.gothamgazette.com/city/6841-conflicts-of-interest-board-opinion-could-limit-mayor-s-legal-defense-fund de Blasio justice legal defense

Mayor de Blasio (photo: Ed Reed/Mayor's Office)


Mayor Bill de Blasio’s plan to create a legal defense fund to pay fees incurred from the recently concluded state and federal investigations into his fundraising activities may face significant hurdles after the Conflicts of Interest Board issued an advisory on Wednesday establishing clear contribution limits for such defense funds.

The mayor and his administration were the subject of two separate corruption investigations -- a federal probe into whether donors to his 2013 electoral campaign or defunct nonprofit, the Campaign for One New York, were promised or granted government favors in exchange for their contributions; and a state probe into whether de Blasio and his team violated election laws in funnelling large donations to Democratic state Senate candidates in 2014. State and federal prosecutors announced earlier this month that they were concluding their investigations without bringing charges against the mayor or his aides.   

De Blasio said in February that he would not use taxpayer funds to pay the law firm of Kramer, Levin, Naftalis and Frankel for his personal legal defense in the two cases, instead announcing plans to create a defense fund and raise money from donors. “All legal efforts on my behalf are not paid for by the taxpayer, as opposed to other city employees," he said. “That’s money that will have to be raised. So that’s the reality, because I guess you didn’t know, I’m not a billionaire like my predecessor.”

But the Conflict of Interest Board, an independent ethics watchdog, wrote in an advisory opinion issued Wednesday that contributions to a legal defense fund created by a public official “are no different from gifts directly to the public servant,” and therefore subject to a number of restrictions, chiefly a $50 limit on donations.

The Conflicts of Interest law is intended to prohibit individuals and firms from currying favor with city officials and defines any gift worth $50 or more as a “valuable gift.” City officials cannot accept a valuable gift, the board wrote, from individuals or firms that have or seek to have business with the city. It also noted that successive gifts within a 12-month period are not allowed and that the $50 limit applies as an aggregate to donors who are related. The aggregate limit also applies to donations by multiple “directors, trustees, or employees” of one firm or affiliated firms.

“In the absence of specific legislation that distinguishes gifts made to public servants through legal defense funds from other gifts to public servants,” the advisory opinion reads, “there is no legal basis for the Board to treat gifts made through legal defense funds differently.”

The law also holds that a public servant may not accept gifts of any value from a subordinate and no “valuable gifts” from people just by virtue of holding their public office. The only allowable unlimited contributions can come from either a family member or a close personal friend “who is not engaged in business dealings with the City, who does not appear before the City, and who otherwise has no non-ministerial dealings with the City,” the opinion reads.

The mayor has not yet specified what his own defense is expected to cost, although it’s likely in the hundreds of thousands, if not more. The city had spent about $10.5 million on outside legal fees in defending the administration and de Blasio’s aides as of earlier this month, Corporation Counsel Zachary Carter testified at a City Council budget hearing.

[Related: Law Department Budget Hearing Focuses on De Blasio Administration Legal Defense]

The COIB opinion poses a major hurdle to de Blasio, who may have to shoulder those legal costs himself or make the unpopular choice of using city funds to pay off a good portion of them, which he is entitled to do. At an unrelated news conference on Wednesday, the mayor indicated that he may take up the advisory opinion with the COIB. “This now initiates a dialogue,” he told reporters. “They’re a government body like everyone else. You can go back and say, ‘Well what about this example or what about this history.’ and again, this is not just applying to me, it applies to other people who may need to use this approach.”

When asked by reporters, de Blasio said that he did not ask for the COIB advisory himself and that he could not think of any very wealthy close friend who could give him the money he owes. He called a legal defense fund a "fair and appropriate tool."

The Board noted in its opinion that distinguishing legal defense funds from gifts would require new legislation or an amendment to the city charter, which the mayor brought up at the news conference. “As they’ve indicated, a potential solution is through legislation,” he said. “That’s a perfectly fair possibility. I’m not committing to anything yet because they literally just put it out, we have to think about it, we have to talk to them.”

The mayor nominates the five members of the COIB, who are confirmed by the City Council.

Dick Dadey, executive director of Citizens Union, a government reform group, praised the COIB opinion as an important measure in preventing “influence peddling by those who do business with the city.” “The ways that people can seek to influence an elected official’s decisions through the use of money become more and more limited within the city over the course of time and this was the one big remaining loophole that was left out there that the Conflicts of Interest Board has now closed,” he said.

Dadey also conceded that the mayor could fall back on city funds to pay his bills. “[Mayor de Blasio] allowed taxpayer funds to pay for the defense of his staff and I think the city may be in a position to pay for his own defense, particularly since he was not charged with anything,” he said.

For de Blasio, who is seeking reelection this year, every option appears to be a minefield.

The mayor said Wednesday that he doesn’t “feel comfortable” with the idea of revisiting use of public money for his legal bills. “I think because I’m the leader of this whole operation it is better not to ask the taxpayers to cover expenses even if they’re valid expenses,” he said.

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
Conflicts of Interest Board Opinion Could Limit Mayor's Legal Defense Fund Wed, 29 Mar 2017 04:00:00 +0000
Citywide Electeds Make Social Media Moves Ahead of Election Year https://www.gothamgazette.com/city/6657-citywide-electeds-make-social-media-moves-ahead-of-election-year https://www.gothamgazette.com/city/6657-citywide-electeds-make-social-media-moves-ahead-of-election-year bdb facebook computers

Mayor de Blasio at Facebook (photo via Mayor's Office)


If there’s an undeniable takeaway from the 2016 presidential election, it’s that social media can play a crucial role in how candidates for public office communicate. Nationally and locally, political candidates and elected officials have for years recognized the role that platforms like Twitter and Facebook can play in public engagement and influencing traditional media.

For New York City’s three citywide elected officials -- Mayor Bill de Blasio, Comptroller Scott Stringer and Public Advocate Letitia James -- this holds true as well. And, ahead of the 2017 city election cycle when all three will be on the ballot, they are reconfiguring their online presences. This involves new accounts, increased tweeting, and navigating sometimes unclear or nonexistent rules. Using social media for campaign communication does require creating distinct accounts for government and campaign purposes.

De Blasio and James have taken steps in recent months to set up separate Twitter accounts for their government and campaign communications. Stringer has not yet done so. The comptroller is also the only of the three who has not yet declared with the city Campaign Finance Board which seat he will run for next year and is a potential challenger to de Blasio in a Democratic mayoral primary.

Stringer’s tweets of late have taken on a stronger personal tone, particularly in opposition to President-elect Donald Trump’s proposed policies and campaign rhetoric. The shift also coincided with the hire of a new communications director, Stringer brought Devon Puglia on board in mid-October. 

As of October 19, de Blasio separated his official Twitter account, creating @NYCMayor, from his campaign account, @BilldeBlasio. Playing on the ‘Tale of Two Cities’ slogan from his first campaign, the campaign account tweeted: “A tale of two Twitter accounts — I’m back at @billdeblasio. Follow updates from me at City Hall at @NYCMayor. Tweets from me signed -bdb.” That was the only one of the account’s first 108 tweets signed by the mayor himself, as of earlier this week.

The campaign account, which had been @deBlasioNYC in 2013, has more than 66,000 followers while the mayor’s official government account has about 720,000 followers and has tweeted nearly 7,900 times.

Eric Phillips, the mayor’s chief spokesperson, confirmed that the official account is run by their digital communications team and would eventually be transferred to the next mayor. The @BilldeBlasio account is run by de Blasio’s reelection campaign staff, campaign spokesperson Dan Levitan said in an email. The campaign account has become very active as de Blasio has launched his re-election bid.

Public Advocate James’ office set up an official account, @NYCPA, in April this year with an eye on keeping James’ official communiques separate from her personal account, @TishJames. De Blasio, James’ predecessor as public advocate, had used only his @BilldeBlasio account.

“Whether it be Talk to Tish town halls or engaging on Twitter and Facebook, Public Advocate James goes where the people are,” said spokesperson Anna Brower, in an email. “The Public Advocate has expanded her social media use to ensure that she is reaching every New Yorker in every corner of our City.” The official account, run by her staff, has tweeted 336 times and has 1,251 followers, while James has posted more than 7,550 tweets on her personal account, active since 2009, and has a following of more than 26,200.

The contrast between the two accounts is most apparent with regards to the presidential election. James used her personal account to tweet and retweet her support of Democratic presidential nominee Hillary Clinton, but her official account did not broach the issue at large. De Blasio’s official account did not address the presidential race either but his campaign account did so liberally.

Comptroller Stringer is an outlier with his single account, @scottmstringer, which he has used since his days as Manhattan borough president, his prior position. He has been on Twitter roughly as long as James, but has been more prolific tweeting, with 10,300 tweets as of December 5. He has more than 23,500 followers, a few thousand fewer than James.

“The Comptroller has a real success story to tell about his fight to make New York a fairer place and his efforts to make government work better for everyday families,” said Puglia, Stringer’s communications director, in an email. “Our staff is working to communicate with New Yorkers in new and innovative ways on every platform. And we’re working to make government more transparent than ever before. In 2016, that means having an active, engaging Twitter account.” It’s unclear whether Stringer will set up a separate social media account once he officially declares a run for office, which may be re-election as comptroller or a mayoral bid.

[Update: during a February exchange on Twitter about the story after a new Conflicts of Interest Board advisory opinion was released that relates to social media use by elected officials and their aides, Puglia told Gotham Gazette, "our twitter account is and has always been the comptroller's official account. It was never for personal or political use."]

James is the only one of the three who appears to personally use her Twitter account on a regular basis. The public advocate is likely to run for re-election, but has not held any campaign events other than fundraisers.

Although social media cuts through the bureaucratic red tape and often helps elected officials engage directly with the public, it has its pitfalls as well. There are well-documented cases wherein elected officials have posted messages they should not have. Some are able to blame an intern and move on; others have seen their careers or candidacies torpedoed. 

Meanwhile, the law does not evolve as fast as technology, creating legal and ethical grey areas at times.

At the federal level, the U.S. Office of Government Ethics issued a set of guidelines last year for federal employees and their usage of social media. But no such guidelines exist in New York for city employees or officials. A spokesperson for the New York City Conflicts of Interest Board said its advisory opinion from 2012, right before the last municipal election, would only generally apply in this case. As per the opinion, a government official may not use city time, resources or staff for campaign-related activities.

The COIB spokesperson could not say whether the board is currently studying the issue of social media use or if they would do so in the future.  

“It is sort of a brave new world in terms of how a public official conducts the people’s business,” said Hana Callaghan, director of the government ethics program at the Markkula Center for Applied Ethics at Santa Clara University, stressing that it’s essential for officials to have separate accounts for their official work and their campaign activity. Last year, the Markkula Center held a roundtable to analyze social media from a government ethics angle and examined the accompanying dilemmas of transparency and accountability.

In a phone interview, Callaghan noted that social media usage has thrown up unique questions about governance and public communication. For instance, in California, she said, communications on Twitter and by email can now fall under the Brown Act, the state’s public meetings law, if there are a significant number of exchanges between elected officials. The law requires that any public meetings are posted publicly and accessible to the public.

Callaghan also said elected officials should be careful about over-reliance on social media since it’s not available to everyone and “they have a responsibility to all their constituents.”

New York City Council Member Ben Kallos, chair of the governmental operations committee, is an avid social media user who often solicits questions through Twitter during committee hearings. He’s well aware of the intersection of technology and governance and the issues that can arise with an elected representative’s use of social media. “Its pretty confusing to the public because they don’t know who to tweet sometimes,” he said of his own experience with separate accounts for official and campaign purposes. “So I have to spend double duty making sure I’m managing both, paying attention to both and ensuring that whether a constituent tweets my campaign or government [account], they get the services they need.”

He said officials should generally ensure that the distinctions between accounts are clear and they “respond from the right places and retweet from the right places.”

“It can be a little bit of a minefield,” Kallos said, “but you just have to be extra cautious.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: this story has been updated with further comment from the comptroller's office during a February exchange.

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Citywide Electeds Make Social Media Moves Ahead of Election Year Wed, 07 Dec 2016 05:00:00 +0000
A New Challenge for De Blasio: Balancing Re-election Campaign and Governing https://www.gothamgazette.com/city/6610-a-new-challenge-for-de-blasio-balancing-re-election-campaign-and-governing https://www.gothamgazette.com/city/6610-a-new-challenge-for-de-blasio-balancing-re-election-campaign-and-governing de blasio NAN hands up

De Blasio at NAN (photo: Ed Reed/Mayor's Office)


New York City’s municipal party primary elections are ten months away, and though he does not yet have a formidable challenger in the race, Mayor Bill de Blasio is not sitting back unprepared. De Blasio, a first-term Democrat, has kickstarted his reelection campaign, raising funds and formulating a campaign message around his achievements. In part, he is trying to preempt a significant challenger from entering the fray. But, as de Blasio himself has said, being Mayor is a 24/7 job and throwing an electoral campaign into the middle of it presents challenges.

One major challenge de Blasio faces, and in unique fashion to his three-term predecessor, is balancing his time spent governing versus campaigning, while also adhering to conflicts of interest rules for all city employees.

Answering questions recently, the mayor has given a glimpse at the balancing act involved in persuading people that he deserves to remain the city’s chief executive and performing the very duties that come with the position. At an unrelated October 26 news conference, Gotham Gazette asked the mayor about his approach to the issue. “We’re trying to figure out a balance,” de Blasio said, stressing that the job of the mayor “begins in the morning, it ends in the night, and it never goes away.”

De Blasio explained the challenge of finding time in his nonstop workday, one that begins around 5:30 a.m., he said, and includes consistent emails and calls until he goes to bed around midnight.

“Because we're in a democracy and there's campaigns and you have to do all the things around a campaign,” he said at the news conference. “As a campaign year is emerging...you've gotta put more time into building up the apparatus. We try to find a way to carve out time, it's not always easy, but we do the best we can.”

Asked if he was dedicating any specific blocks of time, de Blasio said it wasn’t really possible to do so.

De Blasio is the first incumbent New York City mayor seeking re-election without self-financing his campaign since 1997, when Rudy Giuliani won a second term. Former Mayor Michael Bloomberg bankrolled all three of his campaigns, thus needing to dedicate far less time away from his government duties during his two reelection bids, given that fundraising is both time-consuming and essential.

On that front, de Blasio has emphasized a return to his roots, shifting to a small-dollar fundraising operation akin to what Vermont Senator Bernie Sanders employed in the race for the Democratic presidential nomination. De Blasio has hired the same digital fundraising firm, Revolution Messaging, that ran Sanders’ operation, famous for the $27 average contribution that the senator liked to boast.

It is also an apparent attempt by de Blasio to diminish the negative attention he received for his fundraising for the Campaign for One New York, a political nonprofit that promoted his agenda while taking unlimited contributions, that has since become the subject of multiple local, state and federal investigations, and is in the process of shutting down. Neither the mayor or any of his allies involved have been accused of wrongdoing and de Blasio has insisted they acted legally. The mayor has repeatedly said he sought and followed appropriate guidance from the city’s Conflicts of Interest Board.

It is that same board that provides guidance around separating government and campaign activities.

On radio and television appearances soon after the press conference at which de Blasio discussed balancing his time, he elaborated further on the subject when asked. During his weekly segment on WNYC’s The Brian Lehrer Show, two days after the news conference, a caller asked about the time he spends fundraising. “I can’t give you an exact percentage,” de Blasio said. “I mean, obviously, governing is the vast majority of the time...I think most people who are decent human beings, in public life, would like to tell you we would like to spend zero percent of our time on fundraising.”

As he so often does when asked about fundraising, de Blasio stressed the need for campaign finance reform, advocating for full public financing of elections that would not only pull big moneyed interests out of politics but would also focus, “all that time that goes into fundraising now back into public service.” He promised, though, that “governing has to come first and I will just have to do the best I can with limited time in terms of fundraising.”

Without more clarity on the mayor’s schedule, it is unclear how well he is limiting his fundraising time.

But, it is apparent that the mayor is making many fundraising calls and attending a variety of fundraising events already -- he appeared at a small-dollar young professionals fundraiser for his campaign in Harlem Wednesday night; on November 15, he’ll appear at a fundraiser in Southeast Queens hosted by City Council Member Donovan Richards. Previously, de Blasio has attended a variety of other small fundraising events and had a large fundraiser at Brooklyn Bowl, at which comedian Louis CK, an outspoken supporter of the mayor, performed.

Closer to reelection, de Blasio has stepped up his public outreach from a government perspective, too, hosting a number of town halls across the city. He also recently added a new weekly appearance on NY1’s Inside City Hall to his schedule. On the inaugural show, on October 31, anchor Errol Louis also asked the mayor about his fundraising schedule. 

De Blasio’s answer was similar to what he said at the news conference and on WNYC, although once Louis pressed him he added that he spends on average a few hours a week raising campaign funds. “I want to emphasize that it varies so intensely by week,” he said. “The next big campaign filing is in the middle of January, so there’ll be more energy getting close to that,” he added. “But my goal is to keep it limited each week and if it can be just a few hours each week that’s certainly what I prefer.”

De Blasio’s campaign spokesperson said questions about the mayor’s time management should be directed to City Hall. A spokesperson at City Hall then referred Gotham Gazette to the NY1 interview.

Amid any concern that the mayor may lose focus on the job is wariness about the line between official business and campaign activity. “I think he should seek very specific guidance from the Conflicts of Interest Board and the Campaign Finance Board to ensure that he doesn’t cross the line because he has been suspected of crossing earlier lines,” said Dick Dadey, executive director of Citizens Union, a government reform group. “He should be very careful about the use of government resources for his reelection campaign, which is not permitted.”

The city’s campaign finance laws and the City Charter place restrictions on when, where, and how an elected official might indulge in campaign activities, to ensure a separation from their official duties.

The Conflicts of Interest Board also issued a general advisory in 2012 after receiving numerous questions from elected officials on how they and their subordinates may engage in political activity. By law, no elected official is allowed to use city resources for campaign purposes or work on a campaign while on the clock. For instance, in the mayor’s case, he would be prohibited from making campaign-related calls out of City Hall.

There has already been one possible indication of that separation being tested. A few weeks ago, after the mayor hurriedly took a helicopter from Prospect Park in Brooklyn to an event in Queens to avoid being late, his city spokesperson would not confirm the purpose of the meetings that delayed him in Brooklyn. As has been widely reported, the mayor frequents Bar Toto nearby for political meetings and to make fundraising phone calls. The Wall Street Journal reported that the mayor often spends his Fridays at the restaurant.

“Any incumbent who is running for reelection needs to find time within the day to do the politics of this and the mayor is no exception to that,” said Dadey of Citizens Union. Although, the mayor is the first citywide elected to have begun to campaign outright for the 2017 cycle. The other two citywide electeds, Public Advocate Letitia James and Comptroller Scott Stringer, have not been especially active on the campaign trail, though both are raising some money. A spokesperson for James declined to comment for this article. Inquiries to Stringer’s office went unanswered. James has a fundraising event coming up November 16 at a Manhattan restaurant.

For incumbent mayors, Dadey added, “The political activities are almost hidden from view…because they want to be seen as doing their job as Mayor, not necessarily their job as a political figure. So it’s very important that they not be seen as a regular activity because that’s not what we’re paying the Mayor to do.”

What also puts de Blasio in somewhat challenging territory is that his situation is again so different from his predecessor, and many New Yorkers weren’t around for Rudy Giuliani’s tenure and re-election campaign.

“Mayor Bloomberg spent no time dialing for campaign dollars or hosting fundraisers,” said Patrick Muncie of Tusk Strategies. Muncie worked on Bloomberg’s 2005 and 2009 campaigns and served as deputy press secretary in the mayor’s office. He is also involved with NYC Deserves Better, a group aimed at unseating de Blasio next year that is run by Bradley Tusk, who ran Bloomberg’s 2009 campaign. Bloomberg spent over $100 million that year to narrowly win his third term.

“Of course Mayor Bloomberg campaigned in 2005 and 2009, but his passion was for governing and running the city, not politics,” Muncie said. He cited many of the criticisms of the mayor, including his mornings spent at the gym in Park Slope and his Fridays, as the Journal has reported, spent away from City Hall. “New Yorkers expect their mayor to go to work,” he said, “and to spend the majority of their time focused on their concerns.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union. ]]>
A New Challenge for De Blasio: Balancing Re-election Campaign and Governing Thu, 03 Nov 2016 04:00:00 +0000
Should De Blasio’s ‘Agents of the City’ Be Required to File Disclosure Forms? https://www.gothamgazette.com/city/6372-should-de-blasio-s-agents-of-the-city-be-required-to-file-disclosure-forms https://www.gothamgazette.com/city/6372-should-de-blasio-s-agents-of-the-city-be-required-to-file-disclosure-forms de blasio speaking lecturn

Mayor de Blasio (photo: Ed Reed/Mayor's Office)


Two weeks ago, Mayor Bill de Blasio and his government legal counsel, Maya Wiley, declared that a new classification had been granted to five outside advisers of the mayor, shielding communication between de Blasio and those advisers - three of whom represent clients with city business - from certain public disclosure requirements. In doing so, de Blasio provoked heightened scrutiny, even some ridicule, of his relationships with these “agents of the city,” as Wiley called them, including the question of whether they should be subject to the same conflict of interest and financial disclosures required of top city officials.

Facing media inquiries about blocking access to communications with one of those close political advisers, the mayor’s legal team presented a tenuous, novel defense. The city had designated five individuals who work outside city government but regularly advise the mayor as “agents of the city” and declared certain communications between the mayor and those individuals exempt from transparency through the state’s Freedom of Information Law (FOIL).

The revelation and ensuing public controversy over the new classification were prompted by the denial of an initial FOIL request, made by NY1 for emails exchanged between the mayor and Jonathan Rosen of BerlinRosen, a consulting firm, and follow up questions about the justification behind it. Wiley, the mayor’s top government lawyer, explained that the request for those communications had been rejected on the premise that Rosen was acting as an “agent of the city” and explained that the protection extended to four others: Nicholas Baldick and Bill Hyers of Hilltop Public Solutions, another consulting firm; John Del Cecato from AKPD Message and Media; and U.S. Ambassador to South Africa Patrick Gaspard. Rosen and Gaspard are longtime friends of the mayor. Hyers, Baldick, Del Cecato, and Rosen were instrumental in de Blasio’s 2013 election - other than Del Cecato, they also represent clients with city business.

Likely intended as something of a throw-away phrase of legalese, the “agents of the city” moniker used by Wiley stuck and put the mayor further on the defensive. “It’s a fictitious phrase,” said Robert Freeman, executive director of the State Committee on Open Government and FOIL expert. “It’s an attempt to stretch an exception beyond what the Freedom of Information law, in my opinion, permits.” Freeman believes the mayor is outright wrong in his contention and that the exemption from FOIL only applies for consultants who have been “retained” by the city.

The five advisers are unpaid, volunteer consultants, not city employees. While they are not officially affiliated with the administration, they have a very public history with the mayor and his political career. “I think it’s appropriate I call them advisers,” de Blasio said, avoiding the “agents of the city” moniker when pressed by Brian Lehrer on WNYC last week, “I think that’s the right phrase.”

De Blasio has repeatedly said that these advisers do not discuss their clients with him and that if they did, the conversations would be disclosed as lobbying. What he is shielding from FOIL is the informal advice they give him, he says, asserting that “these are folks who are advisers, and in some cases advisers for decades.” There are questions not only about the legal validity of this claim, but also about whether these advisers should provide a full public accounting of their conflicts and finances, as deputy mayors, agency heads, and others must.

“The state’s highest court has held that exceptions to the right to access must be construed narrowly in order to foster public access,” Freeman added. “The mayor’s interpretation is exactly the reverse.”

The administration hasn’t explained the legal underpinnings for the exemptions in this case.

Multiple requests for clarification and further comment sent to the administration went unanswered. But, if the mayor can claim these exemptions using in-house legal determination that treats these individuals as de facto employees of the city, it stands to reason that their status extends to other obligations required of officials in the administration.

“By creating this special designation for unofficial advisers whose opinion carry weight, they’ve opened up a can of worms that prompts some very necessary questions,” said Dick Dadey, executive director of Citizens Union, a government reform group.

“They cannot be protected by being called “agents of the city” without bearing the responsibility to comply fully with the ethics laws governing senior employees and not also be required to file financial disclosure forms,” Dadey said.

As Dadey pointed out, there are a number of legal provisions at play. There is FOIL, which states which agency records are subject to disclosure and which are exempt. There is the Public Officers Law, within which FOIL is contained, which regulates the business and professional activities of state employees and officers of city agencies. There is the City Charter’s Conflicts of Interest section, which lays out the different rules and regulations that public servants are required to abide by and the responsibilities of the Conflicts of Interest Board. And, there is the city’s Administrative Code, which establishes financial disclosure rules for various categories of employees and public officials.

“The concept of an agency with a private person is not something I recognize or remember,” said Michael Hess, former corporation counsel under Mayor Rudolph Giuliani. “Therefore, the concept of an outside adviser whose communications are privileged is not something I’m familiar with.”

There is no specific statute in FOIL that applies to unpaid consultants. To claim an exemption from disclosing communications, as the mayor can with employees of the administration, they must necessarily fall under a city agency, presumably the Mayor’s Office in this case. FOIL defines agency as “any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature.”

Perhaps Wiley and the administration see the mayor’s “kitchen cabinet,” as he called them, as fitting that “other governmental entity” label. But, the administration has declined to explain its rationale.

FOIL lays out a number of instances where the city can deny access to records, including avoiding an invasion of privacy; protecting trade secrets; protecting the integrity of contract negotiations and awards; preventing interference in law enforcement procedures and investigations; ensuring information security; and in the case of “inter-agency or intra-agency materials” that aren’t statistical data, instructions to staff that affect the public, final policy determinations, and external audits.

The last category seems the most likely one applicable to the mayor’s consultations with the five outside advisers.

By virtue of claiming such an exemption to FOIL, de Blasio is implicitly treating these advisers as employees of the city. And if they are considered employees for the sake of FOIL exemptions, then they may be considered employees under the Administrative Code Section 12-110 that deals with annual financial disclosure for local party officials, candidates for public office, and various city employees.

Information that is required to be disclosed includes name of employer; marital status; spouse’s information; offices held by individual and spouse (trusteeship, directorship, partnership and even honorary positions); information on any additional business, trade or occupation; membership of political organizations; details of agreements and contracts; nature and amount of income above $1,000; reimbursements for expenditure; value of gifts received; assets and property owned; details of creditors, among other requirements.

The disclosure requirements generally apply to employees in a significant “policymaking position” and being a direct adviser to the mayor seems to fit that description. If de Blasio’s advisers were to fill out these disclosure forms, their clients and income would be public information, making completely evident their business before the city.

If the mayor were to contend that these individuals are not eligible for disclosure under the conflicts of interest law, it would logically follow that he cannot claim the exemption under FOIL either.

Conflicts of Interest law falls under Chapter 68 of the City Charter. “The Conflicts of Interest laws have limited jurisdiction,” said Carolyn Miller, executive director of the Conflicts of Interest Board, stressing that they only apply to current and former public servants. “It’s a narrow law,” she said. When asked if COIB could make a legal determination on the “agents of the city” and whether they would be required to file disclosure forms, Miller said she couldn’t discuss either subject.

Last week, Common Cause New York, a good government group, called on COIB to review the emails in question between the mayor and these “agents” of the city, citing their concerns that these consultants may be lobbying the mayor or using insider information to benefit their clients.

“The proliferation of the city's shadow government remains a matter of public interest, especially given this protected class of individuals who operate without oversight or accountability,” said Susan Lerner, executive director of Common Cause New York, in a statement. “Common Cause New York believes that this vague category demands explanation, and that the COIB has an obligation to review the emails withheld.”

The mayor has always maintained that the consultants do not discuss their clients with him. “[I]f any of them were ever to attempt to talk about a business matter related to a client – first of all, I wouldn’t allow it,” de Blasio said on WNYC. “Second of all, that would be something – of course that is discloseable – but what I’ve said from the beginning is they don’t talk to me about their clients and business matters with clients, they just don’t.”

At a recent unrelated press conference, Gotham Gazette asked the mayor if the public should not be allowed some insights into the conversations he is having with what he described as “a kitchen cabinet” like other mayors have had, even if portions of the discussions were redacted, as emails obtained through FOIL often are. “I understand the question,” de Blasio said, “but I believe that their role as advisers was appropriate, and the way it’s being handled based on legal guidance is appropriate.”

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by Samar Khurshid, senior reporter, Gotham Gazette
     

Read more by this writer.

Note: Gotham Gazette is an independent publication of Citizens Union Foundation, sister organization of Citizens Union.

Note: this article has been corrected to reflect that John Del Cecato does not represent clients with city business.

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Should De Blasio’s ‘Agents of the City’ Be Required to File Disclosure Forms? Wed, 01 Jun 2016 04:00:00 +0000