Thursday, May 5, 2011

local ethics enforcement in New York: system failure

If you want the latest news from my case, go to the previous post. The following is an essay of the terrible state of local ethics in New York. References to "my case" can be understood by look at this blog,

New York State has failed to provide an effective system to enforce state, local and federal law as it pertains to the ethical behavior of public officials. The deficiencies in local ethics law in New York State have been the subject of publications and court decisions for more than 20 years. Most recently, the NYSBA Task Force on Government Ethics published a report on January 28, 2011 concluded that, “New York State’s law governing municipal ethics, set forth in Article 18 of the General Municipal Law, was enacted almost 50 years ago. For almost 20 years it has been severely criticized as both overbroad and underinclusive and has been seen as fatally flawed from its inception.”

My case shows that there are real victims of this systematic failure. The issue of effective public integrity enforcement on the local level in New York State is not an abstraction or intellectual problem. By failing to protect citizens from illegal behavior on the part of public officials, New York State is allowing the routine violation of the constitutional rights of New York state residents.

Two general methods for uncovering and enforcing ethics exist broadly in New York State law. One, government agencies and bodies exist to investigate, advise and enforce ethics rules and other laws applicable to public officials. These state agencies eventually lead back to the authority of the state government. Two, private citizens through FOIL, initially, followed by complaints, ending in legal action, if necessary, might lead to ethics enforcement and improved public integrity through court mandate.

Let us consider the first option, state action, including local enforcement. The following are actions I took find relief within available agencies: I wrote to town supervisor and asked for relief from zoning harassment and explanation of missing funds. Resulting retaliation described elsewhere in this blog. I contacted the Public Integrity office of the State Attorney General and was advised that this office does not have jurisdiction over local government. Department of State advised me that the Code Enforcement officer has no jurisdiction over zoning issues. I met with the Chairman of the County Board of Supervisors, the County Attorney and wrote to the full board of Supervisor requesting a hearing before the county Ethics Board. I was advised that the county had no jurisdiction over a town and Supervisor Bertram remains chair of the Ethics Board. No hearing occurred. It’s unclear what the New York State Courts considered in respect to my complaint about the town attorney. I wrote to the New York Comptroller’s Office and received no response but the Comptroller's office is limited to financial issues and abuse of power beyond money matters is beyond the scope of that office's mandate. Committee on Open Government, State Department of New York, took no action against the town to guarantee FOIL response, which has been clearly obstructionist. County District Attorney is, like the supervisor of Stuyvesant, a Columbia County elected Republican official. History suggests any attempt to resolve the matter through local law enforcement might be counter productive to achieving justice.

If New York State does not of its own discretion create or empower a State agency to oversee towns and counties, a court should order towns and counties in New York (but not organs of the state itself as state agencies are overseen by attorney general, inspector general, etc.) to post financial records (bank statements, deposit slips, assessment inventories, invoices, etc.) online with sufficient detail to allow citizen volunteers to validate the ethics and accounting of local government, with court ordered protection of citizen volunteers.

New York State institutions and laws (FOIL, Comptroller, Local Ethics Board procedures) are insufficient to allow citizen volunteers to replace a designated agent responsible for oversight of Town governments. My ability to exercise my constitutional rights have suffered due to the lack of a state agency specifically tasked with oversight of public integrity at the town level. As long as New York State leaves foxes in charge of the hen house locally, I and other hens have no watchdog, nor are they empowered to be the watch dogs themselves. Officially, there is no dog.

Let us, then, consider the other broad avenue for relief in the legal system, citizen action, including FOIL investigation, publication, and pursuit of justice in the courts and through political action. The combination of ethics rules and freedom of information laws mean that New York State intends for citizens to be able to obtain and use information to promote ethical behavior in public officials. Local officials are effectively covered by this policy of openness and citizen action. However, in fact, officials in my case were free to ignore FOIL and retaliate against citizens who bring ethics violations to the direct supervisor of the official in question as a result of FOIL. So what is FOIL for, if not finding problems and bringing them to the attention of local authorities?

The retaliation directed at me for trying to obtain relief is a substantial deterrent to others who otherwise might come forward to report misconduct by the supervisor, town attorney or other town agents, employees, officials or contractors, such as the illegal tax assessment activities.

Article 18 of the General Municipal Law applies to all officers and employees, whether paid or unpaid, of every municipality in the state, except New York City. “Characterized by the Temporary State Commission as ‘disgracefully inadequate,’ Article 18 provides little guidance to municipal officials; it contains huge gaps; and in the one area that it does regulate (prohibited interests in contracts), it over-regulates to such an extent that it can turn well-meaning public servants into convicted criminals. For these reasons, the Section’s Ethics Committee has often advised that municipalities should adopt their own comprehensive, comprehensible, and sensible local ethics law. Materials on that topic may also be found on the Section’s website.” (NYSBA/MLRC Municipal Lawyer, Winter 2006, Vol. 20, No. 1)

“Other than authorizing local municipalities to establish boards of ethics, Article 18 provides no framework for the effective administration of a government ethics program. Worse yet, Article 18 undermines the independence of a local ethics board by providing that a majority of its members (rather than all of them) shall not otherwise be officers or employees of the municipality, and by providing that board members shall serve at the pleasure of the appointing authority.” (NYSBA Task Force on Government Ethics January 28, 2011)

“In all but a few municipalities, there are no prohibitions against, for example, municipal officials misusing their office or municipal resources for private gain, appearing before their own municipality on behalf of a private party, or communicating with their former municipal agency on behalf of a private employer the day after they leave municipal service, on a matter they had worked on personally and substantially. In addition, with the exception of criminal prosecution of the prohibited interest, land use disclosure provisions and civil fines for violations of the financial disclosure law, Article 18 neither requires nor authorizes the enforcement of ethics provisions.” (NYSBA/MLRC Municipal Lawyer, Fall 2009, Vol. 23, No. 4)

In 2010, local government also came under scrutiny and Comptroller Thomas DiNapoli proposed revising the General Municipal Law and making other changes to improve municipal ethics. The bill, which was more limited than the proposals presented in the report by the Task Force, was not enacted.

For at least twenty years, there has been an open sore in the body politic of the state of the New York and despite reports, decisions, paper, commissions and proposals, the legislature has done nothing.

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