UPDATED: Words Matter: The Legislature’s Ethics Reform Bill Shows How A Shoddy Process Can Have Unintended Consequences

Yesterday, the Senate failed to pass its version of the ethics reform bill that passed the Assembly earlier this year. While ethics reform is undoubtedly necessary for New York, a longer gestation period for this particular bill may not be such a bad thing.

The legislation is rather massive, and we’ll have more to say about it’s substance in the coming days, but given the ethical shenanigans that seem to have pervaded the legislature over the past year, it’s probably fair to assume that many New Yorkers would view this as an important piece of legislation, deserving of careful consideration by the public and the legislators.

Exactly how much hearing time was specifically devoted to the language in this new bill? Was there a mark-up of the bill in Committee (as is commonplace in other legislatures) where committee members publicly review a bill, line by line, asking questions and offering amendments where appropriate? My guess would be no, since this almost never happens in the New York State Legislature.

Why does this matter? A good hearing or mark-up may have forced members to discuss the following change to existing law in the Assembly version of the bill (we’ll see what the Senate passes), brought to my attention several hours ago by Dennis Hawkins of the Fund for Modern Courts: the bill changes the standard for when a legislator will be subject to penalties for violating the relevant law. Whereas the old law required a finding that the legislator “intentionally” violated the law, the current bill requires that the commission find the legislator “willfully” violated the law.

Why the change? What was the intention? And what is the likely impact? It will be very hard to say, unless there is a detailed committee report that accompanied the bill (there almost certainly wasn’t, as there never is), or unless this came up during a hearing or mark-up specifically devoted to the bill (which there almost certainly wasn’t, since that almost never happens). It’s a safe bet that most legislators don’t even know this change is in here.

In the short time I spent researching this issue, I haven't found any New York case law that explains how "wilful" and "intentional" differ in meaning. It is possible that a court will find they do not differ, though that court will certainly have to confront the fact that this language was explicitly changed. Disturbingly, in other states in other contexts, “willful” has been interpreted to impose a higher threshold than “intentional,”; willfulness has meant not merely committing the act intentionally, but doing so “with legal malice, or without reasonable ground for believing the act to be lawful.” In other words, it is quite possible that the Assembly’s ethics bill -- supposedly meant to strengthen ethics enforcement in the State -- could actually make it more difficult to punish legislators who violate ethics laws intentionally, but not "willfully."

A good legislative process would have forced legislators to publicly grapple with this change and explain it (or, more likely, eliminate it). While the Senate has moved much further than the Assembly in adopting better rules, neither has adopted the kind of committee changes that would have forced them to deal with this potential problem before the bill received a floor vote.

I have notified Senator Squadron's office of the potential issue (Senator Squadron is the Senate sponsor of the bill), and they have stated they will look into it.