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Ethics Board Impeded by Secrecy Rules

Thursday, September 13, 2012

The state’s ethics board is coming under criticism as it launches an investigation that’s believed to focus on a sexual harassment scandal in the Assembly. The secrecy rules imposed in the laws governing the commission are causing some unanticipated problems.  

When the Joint Commission on Public Ethics was formed just over one year ago, Governor Andrew Cuomo and legislative leaders had high hopes for an ethics panel that replaced a much maligned former panel. 

“This is an historic piece of legislation,” Cuomo said in June 2011, when the agreement to form the panel was announced.

The 14-member commission is structured to have an elaborate set of checks and balances for launching any potential corruption investigation.  While Cuomo appoints a majority of the commissioners, majority party legislative leaders get three appointees each and minority party leaders get one appointment.  In order for a probe to commence, three legislative appointees of the same party must approve the investigation.

At the time of the agreement, Citizen’s Union’s Dick Dadey expressed some doubts about a structure where three commissioners could potentially block the wishes of the other 11 commissioners if they voted against an investigation.

“It was trying to set up this Rubik’s cube,” Dadey said, “to ensure that all partisan concerns were addressed.”

At the time, Dadey said lawmakers likely set up the complex checks and balances to avoid any political witch hunts. 

Other rules require commissioners, under penalty of a misdemeanor crime, to keep silent about any investigation. They cannot even confirm if a probe taking place.

That arrangement has led to some confusion recently.

Earlier this month, Cuomo called on the ethics commission to investigate the circumstances surrounding the Assembly’s censure of Assemblyman Vito Lopez for sexual harassment.  Assembly Speaker Sheldon Silver approved a secret settlement of over $100,000 for two other alleged Lopez victims.

The ethics commission held one meeting, and in keeping with its rules, released no information about any investigations. Then, leaks to The New York Times said the commission had approved only a limited probe.  That angered Governor Cuomo, who threatened to conduct his own investigation of the investigation.

The ethics commission then held another meeting, partially open to the public, where commissioners bitterly lamented the leaks and the secrecy imposed by the ethics panel’s rules.

“What appeared in the press was horrible,” said Commissioner Marin Jacob, who was appointed by Speaker Silver.

Succumbing to the complaints, Ethics Commissioner Chair Janet DiFiore bent the rules and announced that a “substantial investigation” had begun.  But DiFiore could not say who or what was being investigated.

The mandatory secrecy led to enigmatic remarks like this one, from Commissioner Mary Lou Rath, who was asked by reporter what exactly she had voted on.

“I voted unanimously to go with the investigation,” Rath said.

“Investigation of what?” Rath was asked.

“The one we are all here talking about,” she answered.

Dadey said that the probe of the Assembly Speaker’s actions, if it is indeed occurring, is the first true test of the new ethics commission. 

“This was developed as an experiment in the abstract,” Dadey said. “Once you see how something works, you may need to change it a little bit.”

The first improvement, Dadey said, is for the commission to plug the leaks that he says are “undermining confidence.” He also believes the leakers should “keep their mouths shut.

Dadey added there needs to be a means for the public to be assured that some kind of investigation is happening, particularly when the accusations are as “troubling” as those in the Assembly alleged sexual harassment case.

“We just don’t know if anything is happening right now, no one can officially confirm it,” said Dadey. “And I think that is not in the public interest.”

He thinks the commission should be given a chance to complete its investigation, and quickly, adding if the probe were to drag on, it would only make the public “more cynical and suspicious.”

Governor Cuomo on Thursday afternoon announced that his Inspector General will be investigating the leaks.

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