Wake up! It’s is a new day in New York

The New York State Bar Association just delivered a report on governmental ethics in New York state. Before anyone makes any unfair jokes about lawyers and sharks or lawyers and ethics as an oxymoron, one has to read this pretty good but imperfect report by a special committee. Among the suggestions are ideas that I’ve been writing about in this column for years. It’s nice to finally see the Bar Association almost on board. In fact, most of the recommendations by this prestigious group are nothing more than good old common sense. New Yorkers would support most, but certainly not all, of them in a New York minute if they were allowed to vote on them in a fair referendum. Of course, any of these ideas would be fought by lawyer legislators who don’t want to see their outside interests and sources of income curtailed.

One of the committee’s ideas would be to create a single ethics commission that would keep an eye on everyone at the same time. That should always have been the case, with one commission watching both legislators and the officials of the executive branch. “Oh no, you can’t do that,” say the legislators. “That would violate the separation of powers in state government. What a bunch of malarkey. In the past, the Legislature has always appointed its own watch dog group and, of course, these so-called legislative ethics commissions have done almost nothing to really keep these people honest. In fact, there have been times that they have done precisely the reverse. Legislators have come to them asking for pre-approval of something that might not actually pass the smell test. Who in the world do they think they are kidding? One commission with an eye on everyone is the way to go.

The Bar Association also calls for giving the state inspector general a fixed term. He or she would be appointed by the governor and confirmed by the Senate, and would report directly to the governor and not his chief of staff (secretary to the governor). The good part of this is the inspector general could not easily be fired for doing his or her job, due to the fixed term.

Sensibly, the Bar committee said that if public officials were found to have violated ethics laws, they could be suspended or even dismissed from office. Who but the members of the Legislature themselves would be opposed to that?

Since the United States Supreme Court recently gutted the “Theft of Honest Services” federal law, the Bar Association would tighten grounds for being found guilty. For example, if you were found guilty of accepting gifts above a certain amount, you’d be charged with a felony. You will remember that former Republican Majority Leader Joe Bruno was found guilty under the federal law, now under question, for selling an allegedly worthless nag to a man who testified that he bought the horse to pay Bruno back for other favors. Among other good ideas, elected officials would be required to disclose if they do business with a lobbyist.

But, of course, lawyers will be lawyers and the report fails miserably when it requires disclosure of income above a ten-thousand dollar threshold. That doesn’t go far enough. Plus, there would be a barn door big enough to drive a truck through when the group says that lawyer legislators would have to disclose their clients “… except when disclosure of an attorney’s clients would harm the client to be detrimental to representation.” What did I tell you about sharks? Come on, lawyers in the Legislature and everyone else should have to tell us who was hiring them at any price. We need to know the names of the clients so we can see if the legislators are in the pockets of these people. Legislators should have to decide whether they want to be legislators or lawyers. The Bar Association committee failed miserably on this one and should be ashamed of themselves. Period.

Let’s face it, folks, this should be the year that a good ethics bill finally passes. By protecting their fellow lawyers in the Legislature, the Bar Association brings disgrace upon itself. A junior high school kid can see through this one and so can the good voters of New York. One of these days, someone is going to wake up to the fact that it is a new day in New York and we expect our representatives to represent us and not themselves.

Originally published in the Legislative Gazette, 2/7/11

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