Wednesday, May 26, 2010

Other States Provide Better Models for Ethics Oversight

It is the beginning of election season, and calls for ethics reform in New York State abound. Helping us to sort through this “Christmas in May” situation is a great pro bono law firm, Kaye Scholar. Associates Leah Kagan and Lindsay Moilanen, overseen by Partner Jim Herschlein, have been examining the structures and powers of ethics commissions in several states to give us a means of comparison in New York. We expect that in the coming months the project will serve as a trove of good ideas as reform proposals surface.

Most calls for reform from outside Albany include an end to the self-policing nature of oversight. Currently, separate ethics commissions are charged with oversight of the legislature and executive branch in New York State. The Legislative Ethics Commission is comprised of nine members, four of whom are legislators, with the remaining five members appointed by legislative leaders. The 13-member Commission on Public Integrity oversees statewide elected officials and lobbyists. Though both Commissions have the power to investigate, fine and refer extreme cases for further action, these are rare occurrences. Simply put, members of both Commissions owe their positions to the elected officials who appointed them.

All agree that what is needed is an atmosphere filled with powerful disincentives for corrupt behavior. And intuitively, self-policing ethics oversight would be the wrong message going forward. Yet publicly, elected officials express concern that a strong, effective ethics oversight body would be manipulated for political means, hindering real change to this structure.

In fact, preliminary research has shown that several states have removed oversight from the hands of legislators and given it instead to entities dominated by an independent majority. Spending a few minutes examining the territory of ethics oversight reveals that self-policing practices could be the poorest option going forward.

A few examples:

In Louisiana, a single ethics commission oversees the executive and legislative branches. The eleven-member commission is selected by the governor and legislature from a list of nominees put together by a nominating committee comprised of the presidents of eight of the state’s leading private universities.

In California, the Fair Political Practices Commission, established after a voter ballot initiative in the 1970’s, has five members, none of whom are appointed by the legislature. The five commissioners are selected by the Governor, Attorney General, Secretary of State and Comptroller, with not more than three members from the same political party.

In Washington State, separate ethics commissions oversee the legislature and executive branches. However, the Legislative Ethics Board consists of nine members, only four of whom are appointed by legislators. The remaining five are citizen members, four of whom are chosen by the governor from lists submitted by legislative caucuses, and the fifth elected by the other four citizen members.

In Alaska, legislative ethics are overseen by two separate entities, the Senate and House Subcommittees. These subcommittee consist of seven members each, two of whom are legislators, the remaining five public members are selected by the Chief Justice of the Alaska Supreme Court and ratified by two-third of the full membership of the Senate or House. The legislative members of these subcommittees cannot serve as chair or vice-chair of these committees.

In Connecticut, ethics enforcement for both the executive and legislative branches is overseen by the nine member Citizens Ethics Advisory Board. Though legislative leaders appoint six of the nine members, two of the six are appointed after being nominated by “a citizens group with an interest in ethical government.” To further minimize charges of politically motivated enforcement actions, complaints are submitted to a randomly selected judge trial referee for findings of probably cause. The judge trial referee is selected by the judicial branch in Connecticut from a list of retired judges who have volunteered for this duty. After a finding of probably cause, a new judge trial referee is selected to preside at the public hearing.

We encourage reform advocates to consider adopting one or some combination of the above examples, or to engineer a new structure. And also, to stay tuned to these empirical comparisons.

1 comment:

Barry Ginsberg said...

The Commission on Public Integrity (“CPI”) has repeatedly demonstrated its independence and has an extensive record of aggressive, fair enforcement. CPI has charged the Governor with violating the gift ban, alleged that he committed perjury and referred him for possible prosecution. Not independent? Not CPI. When CPI found that lobbyists were flouting the gift ban, they charged them, required them to admit their violations and to disclose the names of those public officials, including legislators, to whom the gifts were offered. CPI then took the unprecedented step of forwarding the legislators’ names to the Legislative Ethics Commission, since CPI lacked jurisdiction to pursue those charges. Weak on enforcement? Not CPI. Of course, our State ethics laws can and should be stronger, and our State’s ethics oversight agencies can and should be better. CPI’s Chair has been saying that since he took his oath a year ago, giving specific examples of improvements that should be made. Evaluate CPI on its record. For more information, check our website,, or call me at 518-408-3976.