Albany Times Union: New York Ethics panel works in secret

Ethics panel works in secret
Commission keeping eye on legislators works behind closed doors, in consultation with lawmakers' counsel
The Albany Times Union by IRENE JAY LIU - May 11, 2008

ALBANY -- A special commission that legislators claim is their "independent" ethics watchdog is anything but, a monthlong Times Union investigation has found. In practice, the Legislative Ethics Commission is an extension of the legislators' own team of lawyers, particularly the counsels of the majorities -- the Senate Republicans and Assembly Democrats. The commission's staff is hired by and regularly consults with the legislative lawyers. They draft recommendations behind closed doors, long before the commission's appointed members sit down for an official vote. The commission's co-chair, a Senate representative, signs the staff's paychecks. The commission is in a suite of Senate majority offices in the Alfred E. Smith state office building.

"Part of the problem here, since it's not independent and it's secret, it's the worst of both worlds," said Blair Horner, legislative director for the New York Public Interest Research Group. "It's the legislators self-policing in New York, so that doesn't inspire confidence." The commission's duties include "administration and enforcement" of the Public Officers Law for members and employees of the Legislature and candidates for state legislative office. It issues advisory opinions, investigates complaints and keeps financial disclosure statements of elected officers and candidates. Few activities are made public. Like its predecessor, the Legislative Ethics Committee, it operates in secrecy. Advisory opinion requests and responses are not subject to the state's Freedom of Information Law. Investigations of complaints aren't made public unless a "notice of probable cause," a formal finding that wrongdoing may have occurred, is issued.

In the nearly two decades the ethics panels have existed, not one such notice has been issued, said Melissa Ryan, executive director and commission counsel. Financial statements are available to the public, but dollar amounts are redacted. Filers don't have to certify "under penalty of perjury" that their disclosures are accurate. The commission also provides guidance on ethics laws through advisory opinions to legislators, staff and candidates. The development of the advisories provide a window into the commission's secrecy, lack of independence and significance of the commission's decisions on civil or criminal cases. Based on interviews with people involved with the commission, some of whom would speak only on condition of anonymity, a picture of its inner workings emerges.

When legislators or staff members want guidance on the ethics law, they often seek informal advice from the commission, Ryan said. But if the issue is complex or doesn't have precedence, Ryan said she will suggest the person request a formal advisory opinion. The person seeking an advisory opinion makes a written request, often hand-delivered to the commission, according to a person familiar with the commission operations. All the correspondence from the commission is hand-delivered, possibly to avoid mail fraud prosecution, the person said. Federal prosecutors frequently use statutes that outlaw mail fraud to prosecute public corruption cases involving elected officials. Ryan said hand deliveries are simply more convenient.

"Why would I mail? They're right here," said Ryan, pointing out an office window to the Capitol across the street. After a request for a formal advisory opinion, Ryan, as counsel, will draft an advisory opinion. It goes to four legislative lawyers, one from each party in each house, in sealed envelopes marked confidential, according to several people familiar with the commission. The lawyers review the draft and discuss changes but no written record of the meeting is kept. Previous drafts of opinions are destroyed to prevent confusion, Ryan said. For many years, no meeting could be held without a longtime committee member from the Senate majority, former Sen. James Lack, according to a source close to the committee. Lack, who served on the committee from its inception in 1989 until he retired in 2001, was described as the person who "seemed to be in charge," according to the source. Lack, now a Court of Claims judge, did not return a call for comment Friday.

A day or two before the meeting, binders with the agenda and related documents, including the draft advisory opinions, are hand-delivered to members. At the meeting, commission members and conference lawyers vote to accept or reject the opinions, or hold off voting if changes are needed. According to Ryan and commission co-chair Sen. Andrew Lanza, R-Staten Island, about half the time advisory opinions are passed as is. Most changes are minor, Ryan said. Not every draft opinion makes it to the commission. After the legislative lawyers and Ryan finalize an opinion, the counsel will advise the legislator of the outcome. Legislators can withdraw their requests for any reason, including the prospect that they don't like what the draft says. Once the commission votes on the opinion, it is legally binding. Since 2000, 15 out of 94 requests for opinions have been withdrawn. "If it really stunk, their lawyer would tell them to withdraw the request," said Assemblyman Jack McEneny, D-Albany, a former co-chair of the Legislative Ethics Committee.

If an opinion has already been printed and put in the commission's binders and a legislator then asks to withdraw it before a vote, the draft is removed and replaced by a blank sheet of paper, according to a source familiar with the commission. Ryan said the main reason opinions are withdrawn is because the question "becomes moot" and that "usually they get withdrawn before the opinion is drafted." Lanza said the withdrawal of unfavorable opinions has "not been my experience at all." Ryan says it is important that withdrawn opinions remain confidential. "We don't want them to fear that if they asked for an opinion and it said no, that it would come out," said Ryan. A favorable opinion, on the other hand, has great value. Under state law, "such opinion ... may be introduced and shall be a defense in any criminal or civil action."

But while an opinion can be a strong defense, its strength depends on the integrity of the process that generated it, Columbia Law school professor and former assistant U.S. Attorney Daniel Richman said. "Certainly to the degree that there was collusion between the legislator and the commission in the creation of the opinion, I wouldn't give it much faith in a good-faith defense," Richman said. Federal authorities, for example, are examining the process by which Senate Majority Leader Joseph L. Bruno may have received authorization from within state government for his private business dealings, according to sources with knowledge of the investigation.

The FBI is looking at several opinions Bruno received more than a decade ago from the then-Legislative Ethics Committee. The Commission on Public Integrity, which governs the executive branch, state employees and lobbyists, regularly publishes advisory opinions, with the names redacted. Ryan, however, argues the small number of legislators and others covered by the commission would make it easier to identify redacted names. McEneny said that without confidentiality, lawmakers won't seek guidance. NYPIRG's Horner said there's a simple solution: Create a single independent ethics body for the Legislature and everyone else, as 36 states have done.

"Our primary purpose is not to provide defenses for legislators, it's to provide guidance to legislators. ... it works well as a sounding board for people who want to do the right thing." said Ryan. As for the notion that the commission enables lawmakers to bend the law, Lanza replied that its purpose is to foster and ensure ethical behavior. "It's not going to prevent someone who is intent on breaking the law, but we hope that it will act as a deterrent," he said. Horner, though, notes that the commission hasn't deterred corruption in the Legislature, with several lawmakers convicted or currently under indictment or investigation for acts ranging from bribery to funneling state money to family members. "An independent commission should deter people from getting into trouble," he said. "Obviously, it hasn't worked." Jay Liu can be reached at 454-5081 or by e-mail at iliu@timesunion.com.