NY ethics bill has troublesome exceptions: experts

Reuters News
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Posted: Jun 16, 2011 4:24 PM
NY ethics bill has troublesome exceptions: experts

NEW YORK (Reuters) - Only days after New York Governor Andrew Cuomo hailed a new landmark ethics law aimed at state legislators who also work as lawyers, legal experts said that key loopholes could significantly weaken the law's effectiveness.

The bill was approved this week by the state Senate and Assembly and is now waiting for the governor's signature. It creates a 14-member Joint Commission on Public Ethics that for the first time would oversee legislative and executive offices.

Cuomo praised Senate Majority Leader Dean Skelos and Assembly Speaker Sheldon Silver for passing the legislation dubbed the "Clean Up Albany Act of 2011".

"It is time that we once again have a government that is as good as the people of this state," Cuomo said in a press release.

The bill would require all public officials to make public the identity of legal and lobbying clients who have state contracts or are actively lobbying the state for grants or legislation. Legislators who work at law firms -- nearly one in five of the state's 208 sitting lawmakers, including Silver, Skelos, and Senate Minority Leader John Sampson -- also would have to reveal the amount of income they reap from these clients.

But there are exceptions. Most notably, the law would allow lawyer-legislators to avoid revealing the identity of clients with whom they do not have "direct" dealings.

Additionally, a client's identity may remain secret in cases involving "investigation or prosecution by law enforcement authorities," or in domestic-relations or bankruptcy matters.

And a lawmaker can request that the new public-ethics commission created by the bill make an exception if disclosing a client's identify "is likely to cause harm."

SUPPORTERS 'SNOOKERED'

Stephen Gillers, an ethics professor at New York University School of Law, wrote in an email that the bill's supporters "have been snookered."

"Legislators don't have to represent clients to earn a lot from the fees of their partners' clients," he wrote of the direct-dealing exception.

"The legislator gets paid for his or her presence on the letterhead and can reward the firm's clients without ever representing them personally."

Ronald Minkoff, a litigator at Frankfurt Kurnit Klein & Selz who specializes in ethics and professional responsibility, also questioned the notion that "if we screen a lawyer off that somehow the firm can be untainted by one lawyer's conflict."

Minkoff noted that limiting disclosure could encourage legislators to evade the law by "trying to hand off matters very quickly to partners and others at a firm."

But other exceptions -- for example, the provision that the law would apply only to new clients, or new work from existing clients, brought in on or after July 1, 2012 -- have met with less resistance.

Monroe Freedman, an ethics professor at Hofstra Law School, said that the new-client provision gives clients time to decide whether they want to risk having their name made public.

Mark Mulholland, the managing partner of Ruskin Moscou, which employs Skelos, said the new disclosure requirements would help restore "the public's trust in state government."

"They create greater transparency and oversight, which was the goal from the start," he wrote in an e-mail.

RAISING EYEBROWS

The bill has enjoyed the backing of good-government groups, several of which -- the Brennan Center for Justice, Common Cause, the League of Women Voters, Citizens Union and the New York Public Research Interest Group -- jointly submitted a memorandum in its support.

Russ Haven, executive director of NYPIRG, said, "We think this is really going to have a cleansing effect on the relationships that have been accepted in Albany for decades now. If it turns out legislators are making considerable amounts of money for part-time work, that's going to raise eyebrows and give their challengers ammunition."

But Gillers questioned whether a law with such loopholes is truly a significant development in ethics reform.

"Yes, it's a step forward but so are the first ten yards of the marathon," he wrote.

(Reporting by Noeleen Walder; additional reporting by Dan Wiessner)