Flawed by design: State ethics commission’s Percoco flub is a feature, not a bug
New York Daily News |
Nov 15, 2019
JCOPE Article Links (Jan 2016-Pres)
SWAMP Index: http://swamp.coalitionforintegrity.org
Jurisdictions of State Ethics Commissions: https://www.ncsl.org/research/ethics/50-state-chart-state-ethics-commissions-jurisdic.aspx
NY Times JCOPE/Cuomo Leaks: https://www.nytimes.com/2019/12/02/nyregion/ethics-cuomo-ny-jcope.html
Times Union JCOPE/Cuomo Reluctancy: https://www.timesunion.com/news/article/Uncertain-future-for-JCOPE-reform-push-13851005.php
WGRZ Cuomo/Percoco/JCOPE: https://www.wgrz.com/article/news/politics/cuomo-onus-on-percoco-to-comply-with-law/71-184642811
MySanAntonio Weak JCOPE: https://www.mysanantonio.com/news/article/Key-people-not-interviewed-in-probes-of-JCOPE-15001551.php
Times Union Sullivan Sues JCOPE: https://www.timesunion.com/news/article/Kat-Sullivan-sues-JCOPE-over-lobbying-allegations-14559713.php
Wall Street Journal JCOPE/Garcia: https://www.wsj.com/articles/new-york-states-ethics-watchdog-hit-with-criticism-by-own-member-11576621791
CityandState JCOPE/Sullivan/Cuomo: https://www.cityandstateny.com/articles/policy/policy/jcopes-strange-priorities.html
Times Union Cuomo/JCOPE: https://www.timesunion.com/local/article/Another-Cuomo-insider-for-JCOPE-6975411.php
Times Union Sullivan/JCOPE: https://m.timesunion.com/opinion/article/Editorial-The-watchdog-goes-bad-15055239.php?utm_source=First+Read+Newsletters&utm_campaign=22216193aa-EMAIL_CAMPAIGN_2020_02_14_11_15&utm_medium=email&utm_term=0_252d27c7d1-22216193aa-34693620&mc_cid=22216193aa&mc_eid=534d3b4e0f
ASSESSMENT OF THE JOINT COMISSION ON PUBLIC ETHICS (“JCOPE”) AND THE LEGISLATIVE ETHICS COMMISSION (“LEC”)
||CENTER FOR PUBLIC INTEGRITY|
|Overall||Very Weak||Among the very weakest ethics oversight bodies in the nation||Few, if any, other states have ethics watchdogs so completely compromised by lack of independence, partisanship, lack of transparency and the other failings described below.
||New York’s ethics agencies received a grade of F. (Report published in 2015 and undated in 2018)|
All members of both JCOPE and the LEC are appointed by those regulated.
Regulated persons are members of the LEC.
There is no ban on appointing authority contacting the members it appointed to convey their desires.
The JCOPE Chair serves at the pleasure of the Governor and the LEC is co-chaired by legislators.
Executive Director may be, and is, a recent top aide to the Governor.
There is no independent check on removal of a commissioner.
In 17 states one or more of the regulated bodies do not make appointments.
6 states have appointments by persons outside of any of the regulated bodies including by the judiciary.
Term appointments for all are the norm.
|“Unfortunately for New York's ethics enforcement, the Joint Commission on Public Ethics is far from independent.”|
JCOPE and the LEC operate under very strict secrecy.
Votes on investigations, which may involve a veto by a small minority, are not disclosed.
Results of investigations are only disclosed if the commission decides to issue a report finding misconduct.
Most states have no special rules of confidentiality that differ from those applicable to other enforcement agencies.
A conclusion that an ethics commission has found probable cause is generally disclosed.
|“[M]ost of the commission's work is shielded from New York's Freedom of Information Law and is not available to the public, including votes and other procedural details.”|
|Lack of Political Entanglement||Clear Weakness||
JCOPE is highly politicized.
Two of the Governor’s appointees from his or her political party can veto an investigation.
Three of the appointees of either the Republican or Democratic legislative leaders can veto an investigation.
No members need be independent of any political party.
The Chair of the Commission is likely to be a political supporter of the Governor.
No other state has New York’s politicized voting structure.
They typically operate by majority vote.
|“[J]ust two of the 14 members can veto an investigation. And because of the secrecy surrounding the commission, the public is not entitled to know details about votes and investigations, so there is no documentation of political pressure on the commission.”|
|Uniform Application of the State Code of Ethics||Weakness||
The LEC is free to adopt a different interpretation of the State Code of Ethics from that adopted by JCOPE and this causes both lack of uniformity and a lack of clarity.
The two bodies are free to differ on standards for sanctioning.
|Most states have a single enforcement entity covering both the Legislative and Executive branches.||This topic is not covered by CPI report|
|Adequacy of Funding||Weakness||
JCOPE has a budget of $5.6 million and the LEC of $400,000
This amount is not sufficient for JCOPE robustly to discharge its mission. For example it does not review all disclosure forms for conflict issue disclosed on the face of the form. Had it done so it would likely have discovered the misconduct of Joseph Percoco, a top aide to the Governor.
JCOPE received a score of 25 out of 100 for adequacy of resources
JCOPE has complained about inadequate funding.
|Security of Funding||Weakness||
There is no mechanism akin to that in place for the Legislature and the Judiciary to protect against attempts to starve JCOPE into docility.
|Several states have mechanisms to protect the security of their ethics commission’s funding.||
Appropriations “fluctuate from year to year and are subject to negotiations. The agencies' funding is not protected by the state constitution or other New York laws.”
|Majority Voting||Clear Weakness||
Lack of majority voting means that warranted investigations will not take place and appropriate sanctions will not be imposed.
|New York’s veto system is unique||
Lack of majority voting is a key reason for assigning a grade of F to New York’s ethics agencies
|Campaign Contribution as Source of Conflict of Interest||Weakness||
Large campaign contributions are an important source of conflict of interest that is mitigated by campaign finance regulation yet JCOPE plays no role.
The State Board of Elections which administers campaign finance is itself broken and party controlled. It was the author of the LLC loophole.
|Sixteen states give a campaign finance role to their ethics commission.||
The State Board of Elections gets a score of 0 out of 100 on key factors such as independence, protection from political influence and hiring free of nepotism, cronyism and patronage.
|Adequacy of Available Sanctions||Weakness||
JCOPE is limited to imposing a fine for executive branch violations and the LEC is so limited for legislative branch violations.
No power to remove, demote or suspend serious offenders.
No power to issue an order of public censure which in the context of state government can be a real deterrent.
|11 state let ethics commission impose (5) or recommend imposition of (6) a broad range of sanctions up to and including removal and 6 additional states allow imposition of a public reprimand or censure||
Topic not covered in CPR report
[i] Based on 50 state survey complied for the Committee to Reform the State Constitution.
[ii] Report by the Center for Public Integrity, a non-profit news organization, published November 2015 and updated February 2018
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