From the Editor Betsy Combier:
Does a secret ethics committee paid by the public to work with the very same people who may be subject to investigation by this secret group sound ethical to you?

Ethics panel works in secret
Commission keeping eye on legislators works behind closed doors, in consultation with lawmakers' counsel
By IRENE JAY LIU, Capitol bureau, TimesUnion.com
First published: Sunday, 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."

Irene Jay Liu can be reached at 454-5081 or by e-mail at iliu@timesunion.com.


Students learn about open government from FOIL expert
by Carol Thompson
LINK

Robert Freeman, the executive director of the New York State Committee on Open Government, addressed a group of communication studies students on the SUNY Oswego campus Tuesday.

His message: Every citizen has the right to know how government spends money.

Freemann said his office is available to answer any questions from the public and the press as to what records are made public and what may be kept private. “We’re not there to support the government,” he said. “We’re there to do the right thing.”

The Open Government and Freedom of Information laws deal with the relationship between government and the public, Freemann explained. “Embarrassment is not a ground for withholding records, and it is not a ground to close a meeting,” he said.

Embarrassment is one of the primary reasons record access is denied, although it is generally disguised under “invasion of personal privacy,” one of the reasons a government agency can legally deny a request.

Freemann told the class that his office receives approximately 7,000 calls each year and has written over 20,000 opinions since the office has been in operation.

FOIL, the acronym for the Freedom of Information Law, has become a common term in the state, he said. “You’ll hear, ‘He FOILed for this or he’s FOILing for that’,” he noted.

Adjunct Professor of Communications Studies Bruce Frassinelli, who hosted Freemann, reminded students that the records are not just for the press to access, but for everyone.

Freemann told the students of a FOIL request made by an Albany college newspaper for the records of SUNY Albany’s auxiliary services and learned that the ‘not-for-profit’ service was making a large profit from items sold in vending machines.

Freemann also discussed the difficulty in obtaining public records from police agencies. “They don’t like this law; they don’t like to disclose,” he said. “Why? I’m not exactly sure.”

Freemann said law-enforcement agencies historically don’t like to disclose public records, and that journalists, by nature, need to establish a close relationship with someone in a police agency to obtain information.

Delays in government agencies can also be detrimental to the public’s right to know when information is stalled or not readily available to the press. “Access delayed is access denied,” Freemann said.

In regard to the Open Meetings Law, Frassanelli spoke of a recent allegation made by the Oswego City School District board president. That allegation pertained to a quorum of board members voting on pertinent issues by telephone poll—something that is illegal in New York State.

Freemann explained that the courts have ruled that any time a quorum of members of a governing body gather, it is considered a meeting.

Freemann said when dealing with violations of the law, reporters don’t get nasty enough and the courts are “too political” for appropriate action to be taken. “I would rather rely on the court of public opinion,” he said. “People get upset...if business is being done in secret, vote the rascals out. The court of public opinion, I think, is much more successful in bringing about change.”

Freemann emphasized that along with secrecy, another matter the public does not tolerate is government waste. He spoke of the most recent reason given for the denial of health and pension records that agencies commonly use: HIPPA.

But the HIPPA law specifically states that when the records deal with the relationship between the employer and the employee, HIPPA doesn’t apply, Freemann noted.

In the matter of government records, the taxpayers are the employer, hence, the records are public. HIPPA only covers medical information and does not apply to naming the employees who receive taxpayer-funded benefits.

“If you get health insurance, does that disclose any medical conditions?” Freemann asked. “It doesn’t apply.”

One student in the class noted that his mother worked for a SUNY college. Freemann asked if he thought the public had the right to know his mother’s salary. “I don’t think it’s anybody’s business how much my mother makes,” the student said.

Freemann told the student that his mother’s salary is public information and explained that public employees, who are paid by the public, enjoy a lesser degree of privacy.

The student quipped, “Well then I guess that’s her problem.”

Freemann reviewed what cannot be disclosed, including ongoing police investigations and matters that would jeopardize public safety and security.

The discussion ended with Freemann explaining to the class that student associations also fall under the laws because they deal with public monies. The students were surprised to learn that their campus groups were subject to the law and had to conduct meetings as any government board would.

Freemann addresses the communications students on the SUNY Oswego campus each year.


- Valley News