Testimony: Restoring Public Trust After Massive Scandals Requires New, Strong NYC Ethics Commission

Good evening, members and staff of the Charter Commission. My name is Rachael Fauss, the Senior Policy Advisor for Reinvent Albany. We advocate for transparent and accountable government in New York. 

We urge you – the members of this commission – to set your sights high. Show New Yorkers you are truly independent and ready to propose the major ethics reforms needed to restore public trust after the massive damage caused by the scandals that have rocked city government to the core. Citizens Union reports that two times as many senior city officials have resigned due to the corruption of the Adam’s administration as did under the four previous mayors. Corruption at City Hall is the issue of the day, and this commission has to rise to this moment or risk losing a generation of New Yorkers to cynicism about government and apathy about their right to vote.  

Unfortunately, it’s obvious that the federal sheriff has ridden out of town and New York is on our own. We have to strengthen the City’s front line ethics and anti-corruption agencies.

We urge this commission to do the following three things:

1. Create a New York City independent ethics commission
2. Make ethics guidance far more transparent
3. Study and propose a removal mechanism for the mayor

Create a New York City Independent Ethics Commission

Our main recommendation today is that you propose a ballot initiative creating a New York City independent ethics commission that puts the functions of the Conflicts of Interest Board (COIB) and Lobbying Bureau under one roof, and is funded via independent budgeting and governed by an independently-appointed board. New York’s watchdog groups and independent ethics scholars strongly support the basic responsibilities of the state’s Commission on Ethics and Lobbying in Government (COELIG), which includes ethics and lobbying regulation together under a single commission.

Ethics laws are meant to prevent corruption, hold public officials accountable for misconduct, and protect against the appearance of misconduct. When the people believe their government is corrupt they lose confidence in the ability of the government to solve their everyday problems, become cynical about democracy and apathetic about voting.  

In working with our watchdog colleagues and legal experts, we have helped to advance improvements to New York State’s ethics commission, the Commission on Ethics and Lobbying in Government (COELIG), and recently submitted an amicus brief seeking to uphold its constitutionality before the NYS Court of Appeals. That body has a number of features that should be replicated at the NYC level to improve independence:

1. Lobbying and ethics regulated under one roof – Lobbying and ethics are regulated together by the state commission. There is not only logic to this arrangement given the intersecting moonlighting, post-employment, and gift laws, but it also ensures that regulators have access to information necessary to conduct enforcement actions.
2. Independent budgeting – Any NYC ethics commission must have a protected budget so that it can perform its mission with adequate resources and no fear of retaliation from the executive. The current Conflicts of Interest Board is down 5 staff from 10 years ago, and its budget has essentially remained flat despite huge increases in inflation and an expanded mission – including regulation of legal defense funds. We strongly support providing COIB and any future ethics commissions an independent budget. See our analysis at the end of this testimony regarding the staffing and budget of COIB.
   1. COIB has proposed past charter revisions that would peg its budget to the total net expense budget of the city – with a higher amount if it is given the authority to conduct investigations. Under the City Charter, the Independent Budget Office’s appropriations must not be less than ten percent of the appropriations available to pay for the expenses of the Office of Management and Budget. 
3. Independent, balanced appointments – The NYS Commission on Ethics and Lobbying in Government has three main ways in which its appointment process increases independence:  
   1. Screening panel for nominations – The state’s law school deans approve nominations sent by the appointing authorities to ensure that candidates are qualified and will serve with independence and integrity.
   2. Balanced appointments – The Governor does not have a majority of appointments, but rather appoints 3 of the 11 members; the remainder are appointed by the legislative leaders, Comptroller, and Attorney General. The current Conflicts of Interest Board has a majority of mayoral appointments, with the mayor appointing 3 board members, with one each from the Comptroller and Public Advocate.
   3. Selection of chair by commission, not appointing authority – The chair is selected by the commission itself, and is not appointed separately by the governor. This is a crucial mechanism to ensure that the body operates by consensus, and with independence. 
4. Independent investigators – COELIG is not reliant on the NYS Inspector General – who like the Department of Investigations is appointed by the executive – for investigations, but rather has its own independent investigative staff. We also note that the standards for ethics investigations are different than for criminal investigations; the appearance of misconduct can constitute a violation, not just the intent to commit misconduct.

Make Ethics Guidance Far More Transparent

We also strongly support ensuring that there is greater transparency of written guidance provided to senior officials by any ethics commission, including the current COIB – particularly when this guidance is acknowledged publicly by the official. A continual issue at the city and state level is senior officials stating that guidance was provided to them that allows certain actions, yet the press and public are unable to verify the contents of that guidance and whether the official is acting within the limits set by COIB. There are a number of ways to ensure that there is no “black box” around these decisions – particularly for high-ranking officials:

1. Waiving confidentiality when an official provides misleading, inaccurate, or incomplete public disclosure regarding contents of guidance – NYS’s Commission on Ethics and Lobbying in Government recently adopted an advisory opinion that allows the commission to waive confidentiality and release information related to the guidance they provided, if not the opinion in its entirety. 
2. Requiring disclosure of written opinions when they are publicly cited by officials – The Charter could be amended to require public disclosure of guidance provided by COIB when its existence is acknowledged in public. 

Study and Propose a Removal Mechanism for the Mayor

We urge the commission to study and propose a removal mechanism for the mayor. Any proposal should be made in consultation with legal scholars and experts; the commission could invite such individuals to testify about this issue at your April 9th hearing on government reform, or have its staff meet with experts. We also encourage you to review Citizens Union’s report on Charter Reforms, which includes a discussion of this issue and some considerations for developing a locally-controlled process for removal. 

Thank you for your consideration of these matters.

Click here to view the testimony as a PDF.