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State ethics board impeded by secrecy rules

New York state’s ethics board is coming under criticism as it launches an investigation that is 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 (JCOPE) 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.  Cuomo spoke when the agreement was announced in June of 2011.

“This is an historic piece of legislation,” Cuomo said at the time.

The 14-member commission is structured to have an elaborate set of checks and balances for launching any potential corruption investigations.  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,” said Dadey. “To ensure that all partisan concerns were addressed.”

Dadey at the time 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 whether there actually is a probe taking place.

That arrangement has led to some confusion recently . Earlier this month, Cuomo called on the new ethics commission to investigate 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 the governor, who threatened to conduct his own investigation of the investigation.

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

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

Succumbing to the complaints, Ethics Commissioner Chairwoman 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 a reporter what exactly she had voted on.

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

“Investigation of what?” a reporter asked Rath.

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

Dadey, with Citizens Union, says that over one year since the commission was signed into law, 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,” said Dadey. “Once you see how something works, you may need to change it a little bit.”

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

On Thursday afternoon, Cuomo announced that his Inspector General will be investigating the leaks.

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

Karen DeWitt is Capitol Bureau Chief for New York State Public Radio, a network of 10 public radio stations in New York State. She has covered state government and politics for the network since 1990.