Gotham Gazette Sun, 12 Jul 2020 02:48:08 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) While Trump Debases Federal Inspector General System, New York City’s Remains a Model debase trump ig

NYPD IG Eure, second from left (photo: @OIGNYPD)

During our national coronavirus crisis, two Inspectors General stories were reported – one federal, one New York City – concerning how IGs exercised their statutory duty. No doubt the stories’ significance was lost because our attention is diverted. But they’re important, and telling.

On April 3, President Donald Trump gutted the Inspector General Act of 1978 when he proclaimed “You’re fired!” Michael Atkinson, Inspector General, Office of the Director of National Intelligence.

Forty-two years ago, Congress passed the Act, which was supported by six Democratic and Republican presidents from 1978-2016, all recognizing the good government importance of independent oversight of the executive branch to ferret out mismanagement, abuse, and fraud of its programs and operations.

So why did Trump fire Atkinson – Trump’s own appointee – in essence ending independent federal IG investigations, especially after Atkinson supported Trump’s pre-inauguration plan to restructure “the bloated and politicized intelligence community”?

He dismissed him because Atkinson, doing his duty, investigated a September 2019 whistleblower complaint alleging that Trump pressured the Ukraine government to investigate Joe Biden and his son Hunter Biden, resulting in Trump’s impeachment and a Senate acquittal. 

To Trump, Atkinson’s investigation was an unforgivable betrayal, as his appointee, no matter what the law required. Flailing to find a legitimate dismissal reason, Trump justified it claiming he "no longer" had confidence in Atkinson, whom he said did an absolutely terrible job -- but the pièce de résistance: Atkinson is not a big Trump fan.  

We have heard this before, a Trump appointee promising the Senate to follow the law then forced out when Trump disagrees with his own appointee.

In November 2017, Atkinson at his Senate confirmation hearing swore, “[I]f I am confirmed...we [with Congress] will work together to encourage, operate, and enforce a program for authorized disclosures by whistleblowers within the Intelligence Community that  validates moral courage without compromising national security and without retaliation.” 

By a Senate voice vote, Atkinson was confirmed and by presidential directive went on his way to ‘fix’ the intelligence community. 

After Atkinson honored his Senate promise, Trump retaliated, placing a black storm cloud over all federal IG investigations, ending independence, and sending an abusive message that IGs will be denigrated and dismissed when Trump disagrees with an investigation’s finding.  

Atkinson was not the only IG to feel Trump’s wrath. On April 7, Trump publicly criticized the Health and Human Services deputy IG for a report concerning coronavirus-related shortages and testing delays at our nation’s hospitals. Trump used the refrain that the IG’s findings were politically motivated.

Apparently, no IG’s good government deed goes unpunished -- if the IG’s work gets in Trump’s way.

In contrast, in 1978 former New York City Mayor Ed Koch, by executive order and similar to the federal Inspector General Act, mandated all city government agencies have an IG. For 42 years – and five mayors – New York City has had effective oversight.

For instance, just on April 9, the NYPD’s Office of Inspector General – having a statutory function of oversight – issued its annual report. In a city where policing is always a contentious issue, the report raised serious concerns about racial bias in policing, compelling the mayor and the police commissioner to consider it and respond.

The report’s only issue, in my view, is the IG’s timing, releasing it during a pandemic when police officers’ health and safety are in jeopardy daily – almost 20% of NYPD personnel was out sick at one point recently. The IG report could have waited.

Timing aside, the NYPD IG met its statutory duty, apparently without interference or threats. Since the creation of the NYPD IG office in 2015, notwithstanding NYPD/IG disagreements, there have been 16 NYPD IG reports with recommendations for NYPD reform. Remarkably, and perhaps begrudgingly, the NYPD has accepted or implemented at least partially 76% of those recommendations.

Although a healthy tension exists between the IG and the NYPD, and between other IGs and their relevant agencies, the city’s IG system -- unlike the federal system under Trump -- has worked without a city IG hearing a Trumpian “You’re fired!” for doing an investigation or report.

However, on two occasions mayors have forced out ‘for cause’ the city’s chief IG — the Commissioner of the Department of Investigation.  

In 1986, the mayor demanded the resignation of the DOI commissioner who was caught up in a criminal investigation of his staff member who installed an air conditioner in the commissioner’s home.

In 2018, the mayor dismissed his former campaign treasurer and appointee as DOI commissioner after an independent special investigator found the commissioner abused his authority and was “cavalier with the truth” during the investigation. The ousted commissioner claimed he was fired by the mayor because DOI had issued embarrassing administration reports.  

Contrary to Atkinson’s dismissal, the DOI Commissioner — pursuant to the City Charter — was dismissed with due process and an opportunity to be heard.  

Critically, an IG’s core principle is to independently investigate without being beholden to the appointing authority. This ensures good government when an IG makes recommendations and advises corrective action without the fear of reprisals.

Now, after Atkinson was dismissed without a rational basis, and to ensure all IGs are permitted to independently investigate, Congress must seek answers concerning Atkinson’s dismissal to determine if retaliation by a president for an IG doing his lawful duty are intolerable abuses of power.  

To me, they certainly are.

Arnold N. Kriss is an attorney in private practice in Manhattan, and a former NYPD Deputy Commissioner for Trials and Brooklyn Assistant District Attorney. On Twitter @ArnieKriss.

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While Trump Debases Federal Inspector General System, New York City’s Remains a Model Thu, 23 Apr 2020 04:00:00 +0000
King Saga Shows Need to Bring Real Ethics Reform to the City Council council andy king

Council Member Andy King (photo: William Alatriste/City Council)

Another day, another egregious ethics violation, and it’s still business as usual in the City Council. Last week, the Council’s Committee on Standards and Ethics announced yet another investigation, the third to be precise, into Council Member Andy King’s behavior.

New charges allege that King actively tried to circumvent the Council-imposed ‘monitor,’ seemingly a glorified babysitter since he could not be trusted to act appropriately with his staff, and violated a majority of the disciplinary provisions imposed by the Council in the fall. New allegations include misappropriation of city funds for his personal benefit. 

The Council had every chance to remove him this fall, yet in an appalling 34-12 vote on his expulsion, the Council decided to punt, and in a separate vote opted to suspend him instead. Here begins a renewed round of flimsy excuses and attempts to hide behind precedent from those who voted against his expulsion.

I of course support restorative justice and giving people a second chance, but this is a Council member who has been warned for the umpteenth time and is clearly more emboldened to do whatever he wants. 

The Council is long overdue to rethink ethics oversight. Time and again the Council is asked to police its own members. And time and again, we’ve seen just how ineffective, broken, and inequitable this process is. There’s a better way.

The theory of change is not radical: remove ethics oversight from the political power structure and start a meaningful process to build a system, with input from staff members and aides, that will  protect workers and restore the public’s faith in the Council. This, out of necessity, will require a truly independent ethics oversight body.

But that’s just the first step. No New Yorker should face harassment on the job. It is unacceptable to protect Council members who have demeaned and harassed their employees, like King, who should have been expelled, and avoid severe repercussions for their behavior. The lack of accountability only creates a perverse permission structure that allows this type of deplorable behavior to flourish. That’s why I stand with Harassment Free NYCC, a courageous group of current and former City Council staffers, in their fight for a safe and inclusive work environment.

It’s simply not good enough to do the bare minimum. City Council staffers must be given the same opportunities and benefits as millions of other city employees and be allowed to unionize. I remain hopeful that the burgeoning union, the Association of Legislative Employees, is able to make significant progress on their unionization drive over the next year.

But this kind of reform also requires that the ‘but-this-is-how-we’ve-always-done-it’ mentality is shoved aside. In Albany, we’ve already seen the impact of what can happen when a group of insurgent candidates run, win, and create the space to upend antiquated norms for the better. As someone who used to work in City Council, I know there are many short- and long-term changes that can be made if we empower the staff themselves.

The looming realignment and wave of brand new councilmembers coming to New York City politics and government in 2021 is fertile ground for such structural change. Which is why we need an energized and ambitious cohort of new elected officials to capitalize on this unique opportunity to reimagine how the Council does business. It’s vital that independent reformers, not those beholden to a calcified Council culture and party bosses, are part of the new wave. 

Brandon West is a candidate for City Council in Brooklyn’s District 39 and is the former president of the New Kings Democrats (NKD). On Twitter @btwest.

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King Saga Shows Need to Bring Real Ethics Reform to the City Council Tue, 18 Feb 2020 05:00:00 +0000
After Court Rulings, Unclear Future for Push to Restrict State Legislators' Outside Income Cuomo legislative leaders

Cuomo, center, with 2018 legislative majority leaders (photo: Kevin P. Coughlin/Governor's Office)

After two years of legislative negotiations, commission reports, and lawsuits, parts of a planned salary increase for state officials remain up in the air, and the fate of long-sought restrictions on legislators’ outside income sits entirely with state lawmakers themselves.

The raises and corresponding outside income limitations were made by a commission created by the governor and Legislature created to alter the laws dictating compensation for statewide elected officials, state agency commissioners, and members of the State Senate and Assembly. It recommended pay raises for all of those positions to be phased in over three years. For legislators, who are allowed under state law to earn income outside their government salaries, the commission coupled the second and third phases with tight limits on non-governmental income.

A series of lawsuits filed last year challenged a number of parts of the commission’s final product, which was binding according to the statue empaneling it, with some alleging restrictions on outside income to be outside the body’s purview, and another questioning the legality of giving an unelected body lawmaking authority in the first place. The latest suit, filed in December, claims the state constitution prohibits changing the salary of the governor and lieutenant governor during their terms in office.

The final outcome of the suits, one of which is on appeal, could even have implications for the raises that have already gone into effect (raising, for example, legislators’ annual salaries from $79,500 to $110,000), but the courts have already determined that the outside income restrictions set up by the compensation commission are invalid.

With rulings in the second half of 2019 striking down the outside income limits before they could go into effect, and other pending court decisions throwing the pay hikes into uncertainty, good government advocates and others are calling on the Legislature to take up the restrictions through statute in the 2020 legislative session, which began January 8. They have noted that the commission’s outside income restrictions are consistent with those for members of Congress and would limit potential conflicts of interests, something Governor Andrew Cuomo has advocated for years and a notion supported by many of his fellow Democratic officials.

“We think when you’re a public official, you should have one master, and that master is the public that you’re sworn to serve. Not a business, not a profession, just the public,” said Blair Horner, executive director of the New York Public Interest Research Group (NYPIRG), in an interview.

Ethics watchdogs have for years sounded the alarm over state legislators’ ability to divide their fiduciary interests between the public they are elected to serve and their private sector careers. When former Assembly Speaker Sheldon Silver was arrested in 2015 on corruption charges related to using his power in the Legislature to enrich his private law practice, good government groups called for swift action to limit outside income.

Hope for that action finally came in 2018, when leaders in Albany set up the pay commission, appointing four former or current city or state comptrollers -- Bill Thompson, Scott Stringer, Carl McCall, and Tom DiNapoli -- to carry out its mandate.

The commission’s final recommendations, “which have the force of law and supersede existing law,” according to its enacting statute, would have raised the governor’s salary from $179,000 to $250,000, and the Lieutenant Governor’s from $151,500 to 220,000, over the three-year period from 2019 to 2021. The Attorney General and State Comptroller would also see raises from around $150,000 to 220,000 over the same period. Four tiers of state agency commissioners would also get varying raises.

For legislators, the commission went further. Members of the State Legislature, who in 2018 had a $79,500 salary to serve in the “part-time” body, had not gotten a raise in nearly two decades before the commission members voted to raise them to $130,000 by 2021, with the first phase-in to $110,000 to take place at the beginning of 2020. They also acted to eliminate legislative stipends for all but a handful of leaders. In the second and third years of planned salary increases, a limit of 15 percent of their base pay would be placed on the outside income legislators could earn. Modelled on restrictions for members of Congress, the recommendations place a complete prohibition on outside income when the legislator has a “fiduciary relationship” with the employer or client.

Last year, two Albany Supreme Court justices in separate suits struck down the outside income limits. In the case challenging the unelected commission’s law-making ability outright, brought by the legal advocacy group Government Justice Center, Justice Christina Ryba upheld the first phase of raises but ruled the outside income limits to be beyond the commission’s statutory mandate and, therefore, unlawful, according to a spokesperson for Comptroller DiNapoli, whose office is responsible for cutting checks to state employees. Because the pay raises scheduled for 2020 and 2021 were accompanied by outside income restrictions, they too were struck down.

In October, the Times Union reported the state would not be appealing the courts’ decisions. A spokesperson for Attorney General Letitia James has repeatedly declined to comment when Gotham Gazette has inquired about the status of the lawsuits and state appeal.

Just Do It Legislatively?
In the face of the likely failure to implement the limits, good government groups last October sent a letter to Governor Andrew Cuomo, Senate Majority Leader Andrea Stewart-Cousins, and Assembly Speaker Carl Heastie, all Democrats, urging them to codify the commission’s outside income recommendations. The groups, which included Citizens Union, Common Cause NY, League of Women Voters of New York State, NYPIRG, and Reinvent Albany, wrote, “It is therefore incumbent on you as the state’s leaders to act to curtail outside income by lawmakers to address the corruption problem in Albany and restore the public trust.”

Bills to limit outside income have been floated in the past, but it is unclear whether legislators will reintroduce them in 2020.

Assembly Member Charles Lavine, a Democrat representing parts of Nassau County, introduced a bill in 2017 that would raise government compensation and place a cap on non-government income. Asked whether he would pursue similar legislation now that the compensation commission’s recommendations have been limited by the courts, Lavine told Gotham Gazette in December, “[the pay increase] is a matter that I will discuss with my colleagues and based on the consensus among the members of the Assembly, I will be in a better position to determine in which direction to go. On the question, however, of outside income, it’s always been my position that there has to be some measurable constraint on outside income.”

“If members of the Legislature are working and earning hundreds of thousands of dollars per year then it seems to me the obligation to represent the people we represent becomes secondary to the economic concern,” he added.

The issue is somewhat of a perennial one for reform-minded legislators like Senator Brad Hoylman, a Manhattan Democrat, who carried the Senate companion to Lavine’s bill. But that doesn’t mean it will gain traction in the next legislative session, despite momentum from the commission.

Asked whether he planned to reintroduce his bill, Hoylman told Gotham Gazette: “Yes I hope to. Discussions are ongoing. If a bill is to be meaningful it needs to have the support of both houses.”

“I think that’s where the work remains: convincing our colleagues in both houses of the merit of this approach. I think the public is already there but it is difficult at times to unwind a longstanding tradition in New York,” Hoylman added, referring to fact that the job of legislators is technically part-time.

He noted that often the legislators who do earn outside income do so through private law practice, which he thinks is especially conducive to obscuring conflicts of interest. “Essentially as it stands now the attorney-client privilege allows you to keep your dealings masked and if not a conflict, which I think my colleagues don’t have, the appearance [to the public] is poor to say the least,” he said.

A spokesperson for State Senator Liz Krueger, another Manhattan Democrat who chairs the Senate finance committee and often takes on government ethics issues, said in a statement to Gotham Gazette that Krueger “supports adopting the same rules that Congress has relating to outside income, but the issue has not been discussed by the conference yet.” Members of Congress are limited to the 15% of government salary outside income cap that the state commission had imposed. (When the New York City Council approved a pay raise signed by Mayor Bill de Blasio in 2016, it coupled the increase with a near total ban on outside income for Council members.)

“Just as Congress responded to Watergate with passing these types of restrictions limiting outside income, Albany should do the same,” Hoylman told Gotham Gazette.

Neither the office of Assembly Speaker Carl Heastie nor the office of Senate Majority Leader Andrea Stewart-Cousins responded to multiple requests for comment for this article. It's unclear if either majority chamber has any appetite for taking on additional legislative pay increases and/or a cap on outside income.

Process Problems
Meanwhile, Government Justice Center is appealing Justice Ryba’s decision to leave in place the first phase of pay raises, which went into effect January 1, 2019, on the grounds that a commission whose members were not elected by the public cannot create new law that supersedes existing law. The group is appealing to the Third Department Appellate Division. If it prevails, the group believes the case may have implications for future commissions, as well as the practice of elected representatives delegating their lawmaking power to unelected bodies with little accountability to the public.

“Our hope is to put a stop to the practice,” Cameron Macdonald, executive director of Government Justice Center, told Gotham Gazette. A similar commission just created binding campaign finance laws and changes to political party ballot access. Its work is also the subject of litigation.

“Can the Legislature and the governor punt on policy to an unelected body,” asked Horner of NYPIRG. “We don’t like that process...We think the governor and lawmakers should make these decisions. But if they’re going to do it, they should do it right, and independence is key.”

That was not the case for the pay commission, Horner said, which was appointed by the governor and legislative leaders. “They’re appointed by individuals who would directly benefit from their decisions. So that’s not independent...It’s a bad process and a real process would be with someone who has no skin in the game picking the members of the commission, and that’s not what happened,” he said. New York City law requires the mayor to appoint a commission every four years to examine and make recommendations on elected official pay.

Government Justice Center is also bringing the latest suit filed in December, which argues the state constitution prohibits changing the governor’s and lieutenant governor’s salaries in the middle of a term. In that case, the comptroller has been served and has a January 27 response date, Macdonald said. A spokesperson for DiNapoli said they could not comment on the ongoing case.

by Ethan Geringer-Sameth, reporter, Gotham Gazette

Read more by this writer.

Note: this article has been updated to reflect that neither Heastie's nor Stewart-Cousins' office responded to requests for comment.

After Court Rulings, Unclear Future for Push to Restrict State Legislators' Outside Income Mon, 20 Jan 2020 05:00:00 +0000
Cuomo's Missing Ethics Agenda Cuomo corruption ethics

Cuomo in 2013 (photo: Governor's Office)

The government ethics agenda put forth by Governor Andrew Cuomo in his 2020 State of the State is much shorter than those he’s proposed in years passed.

In fact, it contains just one proposal: legislation mandating some state officials publish their tax returns. Meanwhile, it leaves out several of Cuomo’s past proposals that have yet to be accomplished, including major campaign finance reforms supported by one of his top allies.

The heavily-truncated list comes after more than a year of controversy surrounding the state’s Campaign Finance Reform Commission, which was created by the governor and Legislature to tackle some of his oldest evergreen proposals to get money out of politics. That commission put forth binding recommendations, now law, to institute a new public matching campaign finance system, with much lower individual contribution limits and other reforms.

But following the end of the commission’s work, many observers and one of Cuomo’s own appointees to the body, have said that a number of key campaign finance reforms are yet to be resolved and should be taken up by state lawmakers.

Yet in his most recent State of the State address, and the 318-page policy book that accompanied it, Cuomo outlined just one initiative that would address potential government corruption. The sole item related to ethics or campaign finance is passing the “Nothing to Hide” Act, a bill that would require the state’s most powerful and highly-paid officials to disclose their tax returns to the public. It is a proposal that resonates with national calls for President Donald Trump to release his tax returns, but touches only one edge of the state’s most endemic corruption problems.

Left aside by the campaign finance commission, and also by Cuomo, are proposals to limit donations to party committees and from people doing business with the state, two areas of the campaign finance system that the governor has said enables dark money in the political process.

After years of Cuomo calling for reforms to address perennial corruption and the influence of big money on state government -- strengthening financial disclosure requirements for government officials, expanding state procurement oversight, limiting the income of legislators outside their government salaries, to name a few -- only some of the most highly anticipated proposals have been accomplished, with others only partially or nominally addressed, and a number completely unfulfilled.

Paring down his ethics agenda comes after repeated pledges to clean up state government since his winning 2010 campaign for governor and amid a long series of corruption scandals, including those involving members of Cuomo’s inner circle and state legislative leaders; and amid the governor’s ongoing practice of raising huge sums of money from powerful entities with state business.

“We would have liked to see the governor propose more good government legislation in his State of the State address. In years past he put forth many proposals and this year it appears there’s only one,” said Alex Camarda, senior policy analyst at the good government group Reinvent Albany.

Campaign Finance
High on the list of accomplished reforms are the recent Campaign Finance Reform Commission results, including establishing a voluntary system with lower contribution limits for individuals and public matching funds to multiply the impact of smaller donations. While the details of the new system are still being debated, litigated, and widely critiqued (though not negotiated by state lawmakers), the commissioners left untouched two long-sought changes: contribution limits on donors to political party accounts and on people doing business with the state.

Ethics watchdogs have identified both issues as avenues for circumventing the state’s existing campaign contribution limits and promoting the influence of large political donors. And Cuomo has over the years called for restrictions on both fronts, though he included neither in his 2020 agenda.

Cuomo’s chosen chair of the state Democratic Party, Jay Jacobs, was also one of the governor’s appointees to the campaign finance commission, and while the commission didn’t touch political party donation or doing-business donation limits, Jacobs said that lawmakers should tackle both.

Asked in December why the commission hadn’t, Jacobs said on the Max and Murphy podcast that the panel’s legal counsel believed them to be outside the commission’s jurisdiction. “That’s not to say that I don’t believe, and I do believe, that the legislature should take it up and address both those issues,” he said, adding there should be limits on “party accounts and certainly those doing business with the state.”

Cuomo has for almost his entire term in the executive chamber called for limits to party “housekeeping” accounts, including it in his first State of the State in 2011, and in every other policy book between 2013 and 2018. Housekeeping accounts, as opposed to party committees, are meant to support party activities outside of campaigns, but are frequently used to channel large contributions into elections operations like get out the vote efforts, which can be used to benefit preferred candidates outside of the state’s oversight apparatus.

The governor has also publicly supported campaign contribution limits on people with or seeking state contracts throughout his tenure, at least as far back as his 2012 State of the State. In his speech that year, he raised alarms about the “undue influence over elected officials” of contractors and lobbyists who have donated to the campaigns of key decision-makers and may later expect the favor to be returned. (In 2016, as the Buffalo Billion bid-rigging and bribery scandal was unfolding, Cuomo pledged to restrict contributions to his own campaign coffers from companies when the government was seeking contractors. His office later confirmed to Gotham Gazette that this promise had not been followed through on.)

Cuomo has benefited immensely from contributions from people and businesses with state contracts. The New York Times reported in July that Cuomo had raised over $3 million just from contractors with the Metropolitan Transportation Authority (MTA) since he took office in 2011, according to campaign finance filings. That is more than 3 percent of his total campaign donations over the same period of time coming from contractors with just one, albeit massive, state authority.

Jacobs admitted in the interview that restricting contributions to party accounts goes against the interests of the state party he chairs, of which Cuomo is one of the biggest beneficiaries. “As state party chair I would advocate maybe something different but that’s not my role at this moment,” he said.

Party committees are able to garner a virtually unlimited amount of money and unlike housekeeping accounts can be used on electoral spending to benefit a particular candidate. Campaign finance filings for the weeks ahead of the 2018 primary, in which a number of incumbent Democratic legislators had competitive challenges from the left, show the New York State Democratic Committee received hundreds of thousands of dollars from a handful of unions and political action committees -- the largest donation that filing was $109,000 from the United Federation of Teachers (UFT). Ahead of the general election in 2019, the committee received a single donation of $95,000 from an individual, Lucy R. Waletzky (a Rockefeller), of Pleasantville.

Also left on the cutting room floor was Cuomo’s 2019 proposal to ban all campaign donations from corporations, which accompanied a similar plan to ban contributions by limited liability corporations, or LLCs.

“That’s something that could be done, that could go further than what’s been proposed, but I will say that I think the other items I mentioned -- the doing business restrictions, lower contribution limits, limits on party and housekeeping accounts -- are more important,” Camarda said, noting that LLCs were partially addressed last year when the Legislature and Cuomo imposed contribution limits and new disclosure requirements on them.

Asked why Cuomo had not included some of his past ethics and campaign finance proposals in his 2020 agenda, and specifically why he did not include limits on political party and doing-business contributions, a spokesperson for Cuomo said he still supports past proposals.

"We're proud to say that closing the LLC loophole was among the first bills the governor signed last year and of course we continue to support these further reforms. I'm sure these will be among the issues we’ll be discussing with the legislature this session," wrote Caitlin Girouard, the administration spokesperson, in an email.

What remains in 2020 is the proposed tax return disclosure requirement, which would make high-earning officials, including the governor, attorney general, comptroller, state legislators, and agency commissioners, as well as any elected official earning more than $100,000 annually, to publish their tax returns. The measure is similar to a 2019 proposal in Cuomo’s State of the State that would require candidates for statewide office and the Legislature to submit tax returns to the Board of Elections.

“We think the public financing system still needs to be improved significantly by limiting party contributions, contributions from individuals doing business with the state, for example,” Camarda said.

“And we think there is a real need to reform JCOPE and ethics laws, which nobody believes are working effectively, as evidenced by all the situations that have arisen over the last year,” he added referring to the state’s maligned ethics watchdog.

More Past Cuomo Ethics Proposals
A number of other ethics proposals from previous years remain active in the minds of good government advocates, if no longer in the governor’s. Among them are requiring local elected officials and municipal employees to file financial disclosure statements with JCOPE. Another initiative would have enacted a “first-in-the-nation” code of conduct for lobbyists, as Cuomo put it last year, a measure that several good government groups opposed saying it was too nebulous.

Other past priorities of the governor were pursued in previous years but failed to achieve the full scope of what was advocated. High on that list was a limit on legislators’ income outside their government salary, which was imposed by a commission but later struck down in New York State Supreme Court. Good government groups now want to see the measure, which is intended to limit conflicts of interest and opportunities for corruption, created through statute by the Legislature and governor.

At the start of 2019, Cuomo was calling for expanded oversight powers of the state comptroller and inspector general to review certain large state contracts for SUNY, CUNY, and affiliated organizations, as well as Office of General Services centralized contracts. This was partially achieved through an agreement between Cuomo and Comptroller Thomas DiNapoli in August, but good government groups want to see it codified.

In his 2019 State of the State, and clarified in his executive budget proposals that year, Cuomo called for multiple changes to the state’s Freedom of Information Law, from making the state Legislature subject to open records provisions and allowing public access to union contracts before they’re approved to limiting the length of time during which trade secrets are exempt from FOIL. None of his five proposals passed, but three other legislative amendments were made: exempting mugshots from FOIL, requiring Industrial Development Agencies to livestream and record public meetings, and requiring state agencies with websites to create a webpage for requesting records. In December, Cuomo signed a FOIL bill and vetoed another, both relating to access to court records (the vetoed measure would have limited certain law enforcement-related exemptions to FOIL).

by Ethan Geringer-Sameth, reporter, Gotham Gazette

Read more by this writer.

Note: this story has been updated to reflect that Comptroller DiNapoli's office said the aforementioned agreement with Gov. Cuomo has been finalized, so mention of it not being so has been removed.

Cuomo's Missing Ethics Agenda Tue, 14 Jan 2020 05:00:00 +0000
City Council Votes For Suspension, Against Expulsion of Council Member Andy King for Extensive Ethics Violations cm king do

Council Member Andy King (photo: William Alatriste/City Council)

The New York City Council voted on Monday to suspend Bronx Council Member Andy King for 30 days without pay and imposed several other disciplinary measures following repeated ethics violations by King that were recently substantiated by the Council’s ethics committee.

King, a Democrat, was the subject of a monthslong investigation by the Council’s Committee on Standards and Ethics, the Office of General Counsel, and outside prosecutor Carrie Cohen, who found that the Council member engaged in a pattern of harassment against aides, retaliated against employees who filed ethics complaints against him, fostered a hostile work environment, misused office resources, and allowed his wife, Neva Shillingford-King, to supervise office staff in clear conflicts of interest.

By a vote of 44-1, the full Council approved a resolution that contained 10 disciplinary recommendations based on a 48-page report from the ethics committee. Besides the suspension, King will pay a $15,000 fine, be removed from all committee positions, and his office will be placed under an outside monitor for the remainder of his term. King was the only member to vote against the resolution. Council Members Inez Barron and I. Daneek Miller abstained from the vote. Council Members Fernando Cabrera, Ruben Diaz Sr., Alan Maisel and Francisco Moya were absent from the hearing.  

The monitor will have the authority to review and approve all hiring and firing decisions for King’s staff and will have access to email accounts of King and all his staff members. The Council will also ensure that employees who left King’s office after facing retaliation will have the opportunity to return to Council jobs. If King does not abide by the disciplinary measures, the Council could reopen proceedings against him.

“Those violations outlined in the report are appalling, particularly coming from an elected official who is duty-bound to serve the public,” said Council Speaker Corey Johnson, prior to the vote.

Speaking of the staffers that King had harassed and retaliated against, Johnson said, “I am sickened by what they have endured because of Council Member King’s odious behavior. As for Council Member King, I deplore his cowardice and the disdain with which he treated his employees, the committee, and this entire body.”

Though there have been calls for King’s resignation, including from Speaker Johnson, Mayor Bill de Blasio, Comptroller Scott Stringer, several Council members, and others, there was broad hesitation from Council members at expelling King from the body.

Council members worried that there may be legal consequences to going beyond the ethics committee’s recommendations. Speaker Johnson, a Manhattan Democrat, and Council Member Steven Matteo, a Staten Island Republican and chair of the ethics committee, repeatedly noted that King is facing the harshest punishment ever doled out by the Council and that the committee had undertaken a deliberative investigation and its recommendations were appropriate.

“The committee exhaustively deliberated and debated the terms of this resolution, and concluded that the suspension is significant enough that it will function both as a deterrent against future bad behavior, and also give us the chance to get a monitor in place in Council Member King's office who can develop a relationship with staff before Council Member King returns,” Matteo said on the Council floor.

Council Member Jimmy Van Bramer, a Queens Democrat, was the only member to call for King to be expelled from the legislative body ahead of the vote. At Monday’s hearing, he introduced an amendment to the resolution to expel King, but it failed with 12 votes in favor and 34 against in the 51-seat chamber. Besides Van Bramer, the Council members who voted for the amendment included Costa Constantinides, Rafael Espinal, Rory Lancman, Carlos Menchaca, Bill Perkins, Keith Powers, Antonio Reynoso, Donovan Richards, Helen Rosenthal, Mark Treyger and Eric Ulrich. Council Member Mathieu Eugene abstained.  

Van Bramer said he felt compelled to introduce the amendment after King displayed a lack of contrition over his behavior. “While I was prepared to make the amendment, it was only after I heard Council Member King speak that I knew that I had to,” he said. “And the absolute lack of remorse, the absolute lack of even understanding that anything had been done wrong, anything, blaming other Council members, blaming lawyers, blaming staff. That to me is just even more of the pattern of behavior that brought us to this moment in the first place.”

The committee’s report noted that King was uncooperative throughout its investigation, seeking to delay and obstruct its work. At Monday’s hearing, King was defiant, alleging that he had been deprived of his due process rights and that the report contained “outright lies” about him. 

“I'm a man who's very respectful, full of integrity, stands for something, doesn't fall for anything and everything. And because people say things sometimes, don't necessarily make it true,” he said.

He even sought a temporary restraining order against the Council’s vote in Manhattan Supreme Court but was unsuccessful. He could possibly seek an injunction against the enforcement of the resolution but Johnson was confident that the Council’s move would hold up to legal scrutiny.

Matteo, however, rebutted King’s arguments, pointing out that King and his lawyers had ample time to respond to the committee’s charges and that King did not appear at a two-day trial held by the ethics committee. “Indeed, instead of cooperating Council Member King attempted to make a mockery of this committee, and the Council's rules and policies,” Matteo said.

This isn’t King’s first run-in with the ethics committee. He was previously disciplined for paying unwanted attention to a female staff member and ordered to undergo additional sensitivity training. That Council employee, Chloë Rivera, who now works as senior legislative policy analyst for the Committees on Women and Gender Equity and on Higher Education, revealed her identity in an op-ed in the New York Daily News on Monday, calling on the Council to remove King from office.

“Our elected officials must choose to set the right precedent,” she wrote. “They must establish a standard that worker abuse and witness intimidation and retaliation will not be tolerated, that repeat abusers are unfit to serve and will be removed from office.”

Several Council members who approved of Van Bramer’s amendment cited Rivera’s experience as the reason for their vote. Rivera previously worked as a legislative aide for former Assembly Member Vito Lopez and was among several aides who filed sexual harassment complaints against him. Lopez eventually resigned when threatened with expulsion from the Assembly. Rivera watched Monday’s hearing from the balcony in the Council chambers and later expressed her disappointment with the proceedings. “I'm very disappointed that the motion to expel did not pass but I am satisfied that he is going to suffer some consequences for his actions,” she told Gotham Gazette in a brief interview. 

Among the findings of the latest investigation into King was new evidence that the Council member had retaliated against Rivera after her 2017 complaint. At a staff meeting at his home, King disclosed Rivera’s name, questioned her integrity, and called on his staff members to be loyal to him. “Following my first complaint in 2017...he did not receive adequate consequences for his actions,” Rivera said Monday. “And so that resulted in a fallout, which ended up emboldening him and enraging him and taking it out on his staff. It's disappointing and I think it will put a chilling effect on other survivors or other victims from coming forward at the Council who are being victimized by members.” She hoped that the Council would consider strengthening its rules regarding harassment so that there are more clear-cut consequences.

The Sexual Harassment Working Group, which is made up of former and current aides to state legislators and has been leading advocacy efforts for stronger sexual harassment protections in the state and city, said the Council should not let King off easy.

“If the City Council wants to keep any credibility in the arena of sexual harassment protections, it must lead now, by setting the precedent that it will not tolerate harassment or retaliation against its own workers,” the group wrote in a statement. “City Council staff cannot afford to allow the Council to backtrack on progress made since #MeToo went viral. Anything less than expulsion will send a chilling message to victims that they will not only be denied justice, but they will not be protected from serial predators.”

Johnson has also referred the case against King to outside investigators, which could potentially mean criminal charges for the Council member. Johnson would not say which authorities he made the referral to.

by Samar Khurshid, senior reporter, Gotham Gazette

Read more by this writer.

Note - this article has been updated. 

City Council Votes For Suspension, Against Expulsion of Council Member Andy King for Extensive Ethics Violations Mon, 28 Oct 2019 04:00:00 +0000
Ethics Officials from Around the Globe Discuss Challenges, Strategies bdb remarks class

(photo: Demetrius Freeman/Mayor's Office)

“In some ways, we are all victims of corruption,” Huguette Labelle told attendees of the Global Cities III conference Thursday morning, giving opening remarks at the two-day event organized by Columbia University’s Center for the Advancement of Public Integrity. The event brings together leaders and ethics officials from major cities across the world, including New York City and Barcelona.

Labelle was the board chair of Transparency International, a non-governmental organization with the mission of combating global corruption with chapters in over 100 countries. She delivered the keynote address Thursday in Manhattan, making a direct connection between corruption and a lower quality of life for citizens. Corruption, Labelle said, “manifests itself with poverty around the world and a lack of essential servings, creating a barrier for justice to take place and regulations to be implemented.”

More directly, she declared “corruption is a crime against humanity that has many faces.” Labelle’s speech and the ensuing panel discussion, which featured Carolyn Miller of the New York City Conflicts of Interest Board, considered several contemporary problems and best practices for public integrity.

A recurring theme, brought up by Labelle and other speakers, was the need for transparency in governmental contracts with private businesses. Transparency can be beneficial for both good government purposes, but also for the businesses that seek these contracts. She told the audience, “businesses are victims [of corruption], too.” One proposal that she said worked well in other countries was “getting businesses to publish what they pay” as part of winning government contracts.

She used an example of a Norwegian company doing business in an African country. A governmental official asked the company for a bribe to ensure that they were awarded the contract. When the company informed the official that Norwegian law would require them to publicize this as part of their transparency law, “that was the end of discussion” regarding the bribe.

Corruption in the process for awarding contracts for infrastructure projects can cost taxpayers up to 50% more than what the project would normally. “This means that the quality of the infrastructure is not what’s required,” Labelle said, which will lead to infrastructure lasting for shorter periods of time and requiring frequent costly repairs.”

In the ensuing panel discussion entitled “Effective Ethics Systems for Local and National Governments and Intergovernmental Organizations,” four integrity officials from New York City, the United Nations, Barcelona, and Cape Town discussed what they do well and what challenges they face in the positions.

Gemma Clavert, the director of the Transparency Agency of the Metropolitan Area of Barcelona, said that while her agency is officially independent of the government, “really it’s not correct” because her agency’s budget is set by the officials she is tasked with holding accountable.

“In order to be effective, we need autonomy,” Calvert said, adding that independence is impossible “if you depend on another service the bigger structure.”

New York City’s 2019 Charter Revision Commission recently put forward a proposal for independent budgeting for the Public Advocate and the Borough Presidents, elected officials who are supposed to at least in part act as checks on the mayoral administration, which largely determines the city budget. There has also been discussion about the need for the city’s Conflict of Interest Board (COIB) to have independent budgeting. COIB currently relies on the Mayor and City Council, whom the board is tasked with overseeing, for its funding.

COIB monitors potential conflicts of interest and enforces the ethics code for New York City’s over 325,000-person workforce, from the Mayor to City Council to Department of Sanitation workers, teachers, and beyond.

Miller, COIB’s executive director, said, “it’s a challenge to reach so many people,” for training and educating city employees about potential conflicts of interest. Noting the wide variety of jobs in city government, one of Miller’s biggest challenges is “getting humans in a room.” She pointed to teachers and sanitation workers as two professions where schedules and work conditions do not allow them to take time out of their day for a training on conflicts of interest.

Elia Armstrong, the director of the U.N. Secretariat’s Ethics Offices, said that her office recently saw a spike in the volume of sexual harassment reports it received after it conducted a series of training sessions on the issue. She said this is emblematic of a trend where reports for a particular issue area often spike in the aftermath of her office providing training on that issue.

“One of the things we’re most proud of,” Miller said, was the promptness with which COIB responds to requests for ethics advice. She brought up the board’s attorney-of-the-day hotline, where the public can receive legally-binding conflict-of-interest advice from a staff attorney. The board receives 400-500 requests for advice per month, through phone calls and emails, and most of those are answered within the same day, Miller said.

Armstrong noted how important that is because officials often wait until the last minute to seek counsel on potential conflicts. She said many U.N. officials, for example, wait until the day before a speaking engagement to check with the ethics office to see if there may be a conflict of interest, putting her office in a difficult position.

Miller also spoke about the need for confidentiality when giving advice to public officials. It is necessary for officials to have a “safe space,” where they feel that they can go to seek ethical advice, or the system would not work. “The only way people feel they can be transparent is confidentiality,” Miller said.

“There’s the political world to deal with” when fighting corruption, noted Marianne Camerer, the director of the Building Bridges Program at the University of Cape Town’s Nelson Mandela School of Public Governance. For example, she said, the Mayor of Durban, South Africa, Zandile Gumede was suspended from office over corruption charges relating to a waste management contract. Her supporters then marched, demanding that she be reinstated.

Comparing that case with New York City, Miller said “the kinds of desperate ethical issues we deal with are city employees wanting to take free tickets” for baseball games. Instead of marches in the streets, COIB faces “the righteous indignation of someone who can’t take free Yankees tickets.”

When asked by the moderator about New York City being a “one-party town,” Miller said that “even though New York City is mostly Democrat, there are only so many positions” and “ethics can become political” when politicians seek to distinguish themselves from the competition, so confidentiality is important, because COIB does not want to influence the political process.

Miller also noted some emerging trends in the types of conflicts-of-interests cases her office reviews. Social media use, second jobs, and political speech rank among the top issues that COIB currently contends with.

With the rise of ride-hail apps and similar services, many city employees seek out permissions from COIB to work part-time as Uber or Lyft drivers, for example, as a means of earning a supplemental income.

Additionally, city employees are prohibited from using their offices for political purposes. This means that they should not be promoting political causes from their official social media accounts.

A question Miller said that the board often faces is “what is political and what is policy?” She gave an example of a public official speaking out against the federal government’s immigration policy as an example of a gray area for this rule. Just in the last several days, two City Council members requested that COIB investigate Department of Education officials’ involvement in a press conference in support of Schools Chancellor Richard Carranza organized by the City Council’s Black, Latino and Asian Caucus (BLAC).

COIB will have to decide if DOE officials were supporting Carranza’s policy or engaging in political activity, although the investigation request itself has been seen as political. As Camerer noted at Global Cities, “there’s a whole politics to this” and all four panelists noted that integrity investigations can be difficult when they overlap with political battles.

Frequently, throughout their panel discussion, the four integrity officials commented that they would seek to incorporate ideas that their peers on the panel had discussed. Armstrong expressed admiration for COIB’s attorney of the day hotline and fast response time to advice requests, saying that she would like to implement both at the United Nations.

In her opening remarks, Labelle told the audience that there are many current challenges to public integrity, from the “shrinking space of civil society and the media” to the withdrawal in “commitments to international treaties” to “A.I. and big data becoming both part of the solution, but also a facilitator of all types of corruption.”

She said “the rule of law remains a top priority,” but said that “the other part is enforcement.” It is not simply enough to have strong anti-corruption laws on the books, but those laws must be properly enforced to be effective, she said.

In discussing the myriad of problems that currently threaten public integrity, all of the speakers appeared to agree on a common theme, expressed by Camerer, that “ethics needs to come back on the agenda.”

by Andrew Millman, Gotham Gazette

Read more by this writer.

Ethics Officials from Around the Globe Discuss Challenges, Strategies Thu, 20 Jun 2019 04:00:00 +0000
'So Completely Compromised': New York Watchdog Agencies Have a 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]

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. 

'So Completely Compromised': New York Watchdog Agencies Have a Credibility Problem Tue, 28 May 2019 04:00:00 +0000
Max & Murphy Podcast: State Senator Alessandra Biaggi mxm logo

Ben Max, left, of Gotham Gazette, and Jarrett Murphy, right, of City Limits

February 7, 2019 - Max & Murphy Podcast: State Senator Alessandra Biaggi

alessandra biaggi 150Alessandra Biaggi shocked the New York political world when she defeated then-State Senator Jeff Klein in last September's primary. After hitting the ground running upon taking office in January, State Senator Biaggi joined the show to discuss the work that has been done so far under unified Democratic governance at the state level and what's coming up next, including her work as the new chair of the Senate's ethics committee and where things may get choppy with regard to negotiations with Governor Andrew Cuomo.

Listen to the conversation and let us know what you think -- we're on Twitter @TweetBenMax and @JarrettMurphy. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts, under "Max & Murphy," and listen to Max & Murphy live on Wednesdays at 5 p.m. on WBAI radio, 99.5FM or

by Ben Max, Gotham Gazette

Read more by this writer.

Max & Murphy Podcast: State Senator Alessandra Biaggi Wed, 06 Feb 2019 05:00:00 +0000
Senate Democrats Pursue No Formal Consequences for Parker After 'Kill yourself!' Tweet parker aoc cm

Senator Parker, left, with Majority Leader Stewart-Cousins (photo: @SenatorParker)

The newly-seated Democratic majority in the state Senate does not seem inclined to take any formal action against one of its members, Senator Kevin Parker of Brooklyn, for an inappropriate Twitter outburst last month, directed at a Republican Senate staffer, or his apparent misuse of his official parking placard.

In tweets on December 18, GOP spokesperson Candice Giove had highlighted what seemed to be Parker’s inappropriate use of his parking placard. Parker responded with a shocking tweet, writing “Kill yourself!” to Giove. He later deleted the tweet but not before it was widely shared and memorialized, becoming the subject of a good deal of attention both on social media and in news reports.

The incident sparked a quick backlash against Parker, who has a history of losing his temper and getting in trouble for it. Elected officials, including those within his party, were quick to condemn his flippant remark about suicide. And many also raised the underlying question of whether he was among the public officials, elected and not, that have been abusing the parking privileges they receive as a perk of the job, which has become a broader issue in New York City in recent years.

Parker later expressed some contrition. "I sincerely apologize," he tweeted. "I used a poor choice of words. Suicide is a serious thing and and (sic) should not be made light of." But he continued to criticize Giove on Twitter and elsewhere, calling her “an internet troll” in an interview with the New York Daily News. In a statement at the time, which was between the elections where Democrats flipped the Senate and their official ascent to control of the upper chamber, now-Senate Majority Leader Andrea Stewart-Cousins said, “I was disappointed in Senator Parker’s tweet. Suicide is a serious issue and should not be joked about in this manner. I am glad that he has apologized.”

But that may be the end of it. Stewart-Cousins’ office did not respond to repeated requests for comment on whether Parker would face any formal action for his behavior. The incident is not being probed by the Senate’s Committee on Ethics and Internal Governance, chaired by Senator Alessandra Biaggi, who has promised to reinvigorate what has been a dormant committee despite constant ethical lapses among state officials. And Parker himself told Gotham Gazette in a phone interview that the matter was “handled internally.”

In response, Senate GOP spokesperson Scott Reif had harsh words for the Senate majority. “Senator Parker tells a young female staffer to go kill herself and the Democrats don’t give him so much as a slap on the wrist?,” Reif said in an email to Gotham Gazette. “Punish him for his inappropriate rhetoric. Punish him for violating the parking placard rules. But don’t just bury your head in the sand. Despite their talk, it looks like the new Democratic Majority doesn’t really care about ethics after all.”

Parker, in the phone interview, said he’d learned his lesson. “The rules have been reinforced to me and I will continue to abide by the rules,” he said. “We’ve moved on. We’re passing legislation.”

But he refused to address whether he had improperly used his parking placard. “It’s a tempest in a teacup, I’m not going down that road,” he said. And he would not reveal details of how the matter was resolved. “That’s a private conversation between me and the majority leader,” he said.

There are several avenues for holding state legislators to account for their conduct in office. Besides the ethics committee, there are the oversight and enforcement bodies -- the Joint Commission on Public Ethics and the Legislative Ethics Commission -- charged with investigating and penalizing violations of Public Officers Law (though the law is written vaguely and may be hard to apply to Parker’s situation).

Biaggi’s committee is not taking up the issue. “The first priority for the ethics committee is to ensure there are clear standards of behavior and a clear means for dealing with alleged violations in a timely manner,” said David Neustadt, a spokesperson for Biaggi. “The first focus of the ethics committee is dealing with the issue of sexual harassment and ensuring that New York State is a leader in making sure everyone is safe at work.”

On the potential parking placard violation, Neustadt said, "It's up to the issuing authority to make sure that parking placard holders know and follow the rules. It's up to the police to issue parking tickets when placards are used inappropriately.”

It’s unclear if there have been any complaints filed with either JCOPE or the LEC, or if either body is looking into the incident. Such investigations are usually kept confidential under state law. “We can’t comment on anything that is or might be an investigative matter,” said Walter McClure, a JCOPE spokesperson.

Alex Camarda, senior policy advisor at Reinvent Albany, a group that advocates for government reform, transparency, and accountability, said Parker’s inappropriate comments and alleged placard misuse “ought to be looked at” by both the Senate and JCOPE.

“They should err on the side of acting formally, even for low-level infractions, because it sets a serious tone,” he said.

by Samar Khurshid, senior reporter, Gotham Gazette

Read more by this writer.

Senate Democrats Pursue No Formal Consequences for Parker After 'Kill yourself!' Tweet Sun, 27 Jan 2019 05:00:00 +0000
As Session Starts, Legislators and Advocates Push Overhaul of State Ethics Enforcement comprehensive reform gov

(photo via the Governor's Office)

As the state Legislature returns to session on Wednesday with Democrats in control of both chambers for the first time in a decade, State Senator Liz Krueger of Manhattan and Assemblymember Robert Carroll from Brooklyn are set to introduce a resolution that would amend the state constitution, adding new provisions to prevent and combat public corruption.

The resolution, first introduced late in last year’s session, would add a new section on state government integrity to the state constitution and would consolidate two agencies that are currently charged with monitoring and tackling corruption -- the Joint Commission on Public Ethics (JCOPE) and the Legislative Ethics Commission -- into a new New York State Commission on Government Integrity. The effort is aimed at dealing with a long-standing problem in New York state government that recently saw the leaders of both houses of the Legislature convicted of public corruption, along with many other legislators who were removed from or left office due to ethical issues over the course of decades.

“We think this is the way to create a truly independent ethics body,” Assemblymember Carroll said in a phone interview on Tuesday, shortly after a rally outside the State Senate chambers alongside Senator Krueger and a cohort of government reform advocates. One of the central criticisms of JCOPE, which was created in 2011, is that it is too closely tied to the governor and legislators to be effective, making it a limited deterrent and a weak enforcer.

The proposed resolution would have to be passed by the current Legislature and again by the next elected Legislature in the 2021-2022 session, after which it would be presented to voters as a ballot question for their approval. If successful during this session and in 2021, Carroll estimated that the new law could go into effect by January 2022.

It would create the new nine-member commission -- five of whom would be appointed by the judiciary; two appointments jointly by the governor, comptroller, and attorney general; and two by legislative conference leaders whose parties are the top-two voter getters in a previous gubernatorial election. The commission would be empowered to issue civil sanctions and censures against legislators, would be able to suspend, demote, or terminate a non-elected employee, and make referrals for criminal prosecution. It would also serve as an independent counsel to legislators and state employees seeking informal ethics advice that can later be used in their defense. Those who have served as political party officials, state employees or lobbyists within the previous three years would be barred from being appointed.

Though the proposal does not require Governor Andrew Cuomo’s support, Carroll hoped that it would receive it nonetheless. “I hope the governor sees this is a major ingredient in reforming our broken political system in Albany,” he said.

During the only general election debate against his Republican opponent Marc Molinaro, Cuomo had signalled support for reforming JCOPE. “Change begins with the thin edge of a wedge,” Cuomo said, using a phrase he has often employed, in this case to indicate that he was pleased to accomplish something on ethics reform, and can then use it to do more.

He added, “I believe we need more independence on JCOPE, I believe we need totally independent appointees and not necessarily representatives of both houses. I’d be open to a number of configurations, but they’d have to be independent.” In a statement on Tuesday, Hazel Crampton-Hays, a spokesperson for Cuomo, reiterated that stance, but stopped short of endorsing the Carroll-Krueger plan: “As the Governor has previously said, we are open to changes to the structure of ethics enforcement and we will review any proposals that are introduced.”

Both Carroll and Krueger, Democrats like Cuomo, argue that a constitutional amendment is essential, particularly with renewed attention in this last election cycle to the activities of JCOPE, headed by Seth Agata, a former Cuomo aide nominated by the governor and appointed as executive director by the agency's commissioners in similar fashion to his predecessors. The state agency, which monitors lobbying at the state level besides ethics violations, has been widely criticized as inefficient and overly vulnerable to political interference, while at the same time being entirely opaque to the public and lacking clear jurisdiction.

In particular, Krueger said the agency has failed to investigate incidents and allegations of sexual harassment, even when they are made widely known. For instance, in January 2018, then-State Senator and Independent Democratic Conference leader Jeff Klein was accused of forcible kissing a former staffer, Erica Vladimer, but JCOPE has yet to make clear whether it is investigating the claim and has not provided any information to either the public, press, or Vladimer in the year since since she spoke out. JCOPE officials have pushed back against such criticism, noting that divulging information about investigations is against the law. At a March 2018 meeting, Commission Chair Michael Rozen said the agency's silence does not indicate action or inaction. "No conclusions should be inferred by the Commission’s silence," he said.

The new agency, on the other hand, would have to establish a dedicated unit for sexual harassment investigations and would also have more expansive transparency provisions, being subject to the same Freedom of Information Law that currently applies to the executive branch (there are ongoing negotiations about extending FOIL to the Legislature).

Last year, JCOPE’s lack of transparency was put to the legal test. New York Republican party chair Ed Cox and Molinaro, the Republican gubernatorial nominee, sued the agency to force a vote on an investigation into Joe Percoco, the former top Cuomo aide who was convicted on federal corruption charges last year. During the trial, Percoco was found to have improperly used his executive chamber office while working on Cuomo’s campaign, but he was never investigated by JCOPE. On December 19, a state supreme court judge ruled that the agency must take a vote within 30 days and then inform the judge, though they were not ordered to release the details of the vote to the public.

“I don’t think that current model is working and I think we need to fix that...It’s just not designed to do its job,” Krueger said of JCOPE in a December interview. She and Carroll were joined at the state Capitol building on Tuesday by representatives of groups including Common Cause New York, Reinvent Albany, the League of Women Voters of the State of New York, the New York Public Interest Research Group, the New York City Bar Association, as well as a few legislators, such as Senator Jen Metzger and Assemblymembers Richard Gottfried and Carrie Woerner.

What remains unclear is whether the leaders of both legislative chambers will support the proposal. Requests for comment to Assembly Speaker Carl Heastie’s and Senate Majority Leader Andrea Stewart-Cousins’ offices went unanswered.

by Samar Khurshid, senior reporter, Gotham Gazette

Read more by this writer.

Note - this article has been updated to clarify that Seth Agata was appointed by JCOPE commissioners, not the governor. It has also been updated to include public statements made by JCOPE chair Michael Rosen about why the agency does not comment on investigations. 

As Session Starts, Legislators and Advocates Push Overhaul of State Ethics Enforcement Tue, 08 Jan 2019 05:00:00 +0000