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Parting words from the state ethics watchdog

State ethics chief steps aside to make way for strengthened oversight commission

Barry Ginsberg, departing executive director, New York State Commission on Public Integrity. Photo courtesy of the commission.

 

 

Barry Ginsberg

Executive Director and Chief Counsel, Commission on Public Integrity

Arrived: January 2008
Departs: December 2011

The recent acquittal of Assemblymember William Boyland on bribery charges leaves two sitting members of the New York State legislature under indictment. Another 17 have left since 1999 following ethical misconduct or criminal charges, more than half of them in the last four years. Anyone who isn’t hauled out in handcuffs is pretty much guaranteed a job for life: according to the good-government group Citizens Union, 96 percent of state assembly members and senators win reelection in every race.

Reformers put some of the blame on the lack of power New York State’s ethics board, the Commission on Public Integrity (CPI), has had to watchdog the legislature. That is supposed to change on December 12, when Governor Cuomo’s Public Integrity Reform Act goes into effect. Its centerpiece is the new Joint Commission on Public Ethics, which will replace the Commission on Public Integrity and, unlike its predecessor, will have power over the state legislature. Among other new measures, financial statements from elected officials will now be posted online, and officials convicted of a crime related to their public office may lose their pensions.

Officially, the old ethics commission disbanded on September 7. But since then a handful of staff members have stuck around to answer phones and emails. They are not allowed to launch or pursue investigations.

In an exclusive interview, The New York World spoke with CPI’s outgoing executive director and general counsel, Barry Ginsberg.

Ginsberg, a lawyer by training, has been a key leader of the commission since 2008 and has handled high-profile cases such as Troopergate and former governor David Paterson’s Yankee ticket freebies. Troopergate broke out in July 2007 after then-New York State Attorney General Andrew Cuomo admonished former Governor Eliot Spitzer’s administration for ordering the state’s police to create special records of Senate majority leader Joseph L. Bruno’s whereabouts when he traveled with police escorts in New York City.

His predecessor as executive director, Herbert Teitelbaum, resigned in 2009 following accusations that Teitelbaum had leaked details of the commission’s Troopergate investigation to a friend in the Spitzer administration. (Teitelbaum denies sharing confidential information.) That case ended with a $10,000 fine for Spitzer communications director Darren Dopp. Under Ginsberg, the commission fined Gov. Paterson $62,000 last year for accepting five free Yankees tickets for the 2009 World Series.

We asked Ginsberg about the challenges of keeping order in a notoriously corrupt Albany, and what we can – and can’t – expect from the new Joint Commission.

 

How did you get involved with CPI?

I began my legal career in court of appeals as a litigator, then was a prosecutor in Manhattan, prosecuting murderers and robbers. I was later recruited to become the commission’s general counsel back in 2008. The commission was fairly new then, it had just started in 2007.

There were some personal reasons that attracted me to them: on the professional level, it was the idea of joining what was then a fairly new entity, helping it grow, helping it work, helping it become an effective ethics arm. I believe in government service, in justice in government ethics, and saw this as a good opportunity to make it work in New York.

 

Some experts in this area such as the city’s Conflict of Interest Board’s executive director, Mark Davies, have said that the state’s ethics overall is backwards compared to other states. CPI, for instance, doesn’t even have oversight over the legislature.

New York could improve for sure; it’s a work in progress. It was only in the mid to late 1980s that an ethics commission was formed. It was criticized with not doing enough, and not having enforcement powers. Then in 2007 a reform act was passed which created CPI. It’s a process and we’re moving along the process. I don’t think anyone thinks we’re done.

 

What are some of the highlights of your time at CPI and some successful cases that stand out for you? Troopergate and Paterson’s Yankee freebies, perhaps?

The CPI was formed in 2007 with a merger of the previous state ethics commission and lobbying commission, frankly a stellar cast of characters including a couple of US attorneys, judges, the former head of civil services. So one of the things I think is a highlight is forming that group into a coherent working whole, having the staffs of these two separate commissions with very different outlooks on life. Another highlight would be interpreting what was then a new statute to public employees.

Bolstering confidence and integrity in the commission was also a highlight. On a cultural issue, this commission – and it was not that we weren’t into enforcement – saw its function equally if not more so in prevention. This commission had a very robust training unit, and we created online training for public employees in state ethics, which is a very robust way to provide info.

Also we instituted a policy that hadn’t existed: people who wanted to settle charges with us had to admit they violated the law on top of paying fines which is another thing that promotes compliance with the law.

In terms of cases, those are the two that were most well known: Troopergate and Paterson’s Yankee tickets. You know, the Troopergate matter, once we issued a charge, our entire file was posted on the web for anyone to read or analyze. Most people who’ve criticized the case haven’t taken the time to analyze the case. The principle behind the commission’s enforcement action was the misuse of the state police by a public official, and you don’t have to look very far in today’s world to see where this has been brought to an extreme, for example, in the Middle East. The commission, of all agencies looking at Troopergate, was the only one that ended up charging anybody with violating the law.

 

So this commission lacked enforcement powers?

That criticism has certainly been what has gotten press attention, but I don’t think that this commission lacked them. Of course these powers could be stronger, but for ethical violations, fines in New York are among the highest in the country. Violations of the gift provision could result in a $40,000 fine of top of the value of gift. Some of the lobbying act violations are $25,000 or higher. We could have used more resources for investigations but not more statutory powers.

 

CPI has had its share of bad press – Troopergate, for instance, resulted in the resignation of your immediate predecessor. What was it like taking over the helm after that, and how did you work to regain CPI’s standing in ethics governance?

By the time I took over, one of the things we did together with [the commission’s spokesperson] Walter Ayres was to make a concerted effort to be more open and transparent. We met with all the major papers, answered all their questions, spoke with all the reporters… By dealing with us, the conversation changed from the discussion of whether the commission could be restructure to the specific focus on the legislature and the need for independent oversight and more disclosure.

It’s true, CPI had no authorization to investigate the legislature, but despite that, we did much to change the culture of legislature with our power to investigate and impose penalties on quite a few lobbyists that gave them gifts. That had a significant impact on changing the culture there, and I think most people agree that there should be a more independent body to oversee the legislature.

 

What are some of the things you wish you could have finished or accomplished at CPI before moving on?

There’re a lot of things, for instance jurisdiction over municipal lobbying which we haven’t been able to implement; raising the requirements for lobbyists from $5,000 to $10,000 – right now lobbyists have to register if they anticipate receiving $5,000 in compensation and expenditures in a year. What we’ve proposed is raising that amount to $10,000 in an effort to focus resources on where they could do the most good, continuing to improve the law in other ways. Also for audits ¬ – I think we could do more of them, more onsite audits.

 

It’s nearing the end of November and still no members of the new commission have been named. Is the state cutting it too close to the deadline?

No, they’re not cutting it close, we’re a month or so away so right no nobody has failed to live up to what the statute requires.

 

We’ve recently been captivated by the City’s comptroller having one of his “bundlers” arrested amid ongoing investigations into his campaign financing. At the state level, people have been talking about lobbyists engaging in campaign finance bundling.

We have proposed that campaign contributions made by lobbyists should be disclosed as lobbying expenses. Most people misunderstand the lobbying act: there’s very little in the lobbying act that’s actually prohibited. Bundling is unlawful under the election law to give contributions in anything other than in own name. In fact, this commission settled with three big lobbyists [Powers Crane & Company, LLC, Crane and Vacco, LLC and Crane Consulting, LLC] – who bundled and they paid a total penalty of about $60,000. This came under the gifts law.

Any such activity would have come under purview of this commission. But under the new Public Integrity Reform Act, the definition of “gift” in the Lobby Act was amended to exclude contributions made in violation of election law. These violations may thus actually now be lawful.

Those three big lobbyists were charged with giving unlawful gifts, because they were not lawful campaign contributions. But now, under new law, who knows.

 

Any words for the incoming Joint Commission?

They have new powers over the legislature, and I hope they have resources to do that effectively. But the laws constrain the commission, and not always to the benefit of the commission or the public, so at some point I’m hoping there could be a change in those laws.

I don’t know that’s it’s fair to begin to analyze JCOPE; let’s see who gets appointed and judge them by what they do. For any entity to gain some public trust, it takes time, like an investment, You have to understand that any organization is probably going to make some mistakes: you make them and move forward.

 

You mentioned changes in laws – what would you want to see changed?

Currently, what the law says – and I’m paraphrasing – is if the commission does an investigation and decides not to issue a charge, there’s very little the commission can say about that investigation. The law says investigations are confidential unless and until the commission issues a charge. But maybe there can be a procedure, and it’s a balancing act: you want to be fair to people, especially if the public has an interest in knowing how the commission came to its conclusion. Also, this commission and JCOPE are exempt from the Freedom of Information laws. Statutes specifically say that these laws don’t apply to them. There could be some sort of mechanism for people to make an application to get those records unsealed. Again, I understand the reason behind these laws, but there may be room for some compromise or balance. The commission has been criticized for what it did do, but often also for what it didn’t do, and it couldn’t say much about those because of law restrictions.

 

What are some of the biggest misconceptions about state ethics or the CPI?

There aren’t that many misconceptions as much as non-conceptions. It shouldn’t be the case that too many state employees aren’t aware of state ethics, but it is. The general public is unaware of what the law requires, or that the code of ethics doesn’t just deal with actual acts of violation. People are supposed to conduct themselves in such a way to avoid that appearance. With respect to the lobbying act, the misconception that we regulate lobbyists – the lobbying act is mainly a disclosure act.

So moving forward, where will you be headed?

I don’t know for sure that I’m leaving – I’m technically leaving the position as it will no longer exist in December. But whether I’ll be a part of JCOPE, I can’t say. My professional life has been primarily built around serving public and government, in some shape or form, and I intend to continue that. I find public work to be personally rewarding, and if it sounds egotistical I think I do it well. There’s a value and I hope to be able to keep contributing.

 

This interview has been edited and condensed.

 

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