Wednesday, February 29, 2012

A Lot to Talk About

I bet Ellen B. and John M. are surprised today about how much news they made at their first JCOPE meeting.

I was surprised, too. In no particular order, here are some of the noteworthy developments:

I was surprised that the commission discussed Ellen’s delegation of authority in public session. That’s never been done before. John even provided me a document that delineates that authority. I can assure you that this matter has never been broached in public before. In fact, I asked several times for it in years past and made formal FOIL requests, but all such requests were denied by Walter “Got Scotch” Ayers.

The document itself was surprising because it references a schedule for late filing fees that the commission has approved. I’ll be asking for that today because COPI never approved a schedule in its public meetings, and never announced approving one after exiting its executive sessions. The only schedule I’m aware of was approved by the Lobby Commission many years ago and it does not provide for late fees for registration amendments.

I was also surprised that the commission released its organizational chart. And I have to agree with some commentators that if you are going to release the organization chart you should release the job descriptions, qualifications and salaries. Having said that, the transparency is very encouraging and it allows me to draw some conclusions.

It appears that Ms. Biben will be beefing up the investigatory and enforcement arm, while reducing the program and administrative side. This means they are going to be hiring additional lawyers who will need to get up to speed quickly. It also means that some existing program people at the commission will be let go.

I’ve said over and over that an excessive focus on prosecution is a mistake. But it’s Ellen’s show now, and she deserves a chance to prove herself and her approach. She’s sharp. She and John are reading the papers this morning and they know that they are under the microscope. Some of their comments from yesterday clearly left the wrong impression – Yes, JCOPE is in the Executive Branch. But everyone cringed at the comment that implied it was under the control of the Governor.  I think what they meant to say is that JCOPE is an Executive Agency in the sense that the Comptroller’s Office and AG’s office are Executive Branch entities. They are all funded out of the Executive Budget, but they are not under the “control” of the governor. They are independent.

That needs to be made clear, and I bet they try to clear that up in the days ahead.

It was, on balance, a good meeting yesterday. It was more open than at any time in recent memory. More openness means more scrutiny, but that comes with the territory.

Alas, the weirdest thing about yesterday was that the Chair, Ms. DiFiore, still has an aversion to using the public parking lot just across the street. But this time, at least, she had her driver sitting in her vehicle outside the JCOPE office. Did he put quarters in the meter? No. He just sat there. No tickets resulted because the vehicle was occupied. I guess I should consider this progress?!?

Tuesday, February 28, 2012

A New Beginning

Ellen Biben begins as state ethics czar today. She’ll be presiding over her very first JCOPE meeting.

I think she’ll do a good job. She is sharp, sincere and, I believe, dedicated to doing the right thing.

Now for the Gershmans and Confessores of the world, please understand this: Yes I am saying affirmative things about her at this point. That’s because I always try to give people the benefit of the doubt at the start of their tenure. I want to see them succeed. (I did the same for others.)

But I happen to think Biben is different from others who served in this position recently. She’s not the least bit arrogant. Nor is she from the Spitzer school of “Do as I say not as I do.” This separates her in my mind from Feerick, Teitelbaum, Cherkasy and Ginsberg.

Another positive sign is the hiring of John Milgrim, who is a savvy press guy. Full disclosure here: I’m a Milgrim fan. I actually tried to hire him as Lobbying Commission spox a long time ago. (The Spitzer crowd at the Lobby Commission put the kybosh on that.)

With Milgrim around, I can’t imagine the commission being so tone deaf and insensitive to appearances. At a minimum, he’ll see to it that someone puts quarters in the parking meter for the chairwoman.

I also doubt that John will be insinuating that state lawmakers are drunks like Walter “Got Scotch” Ayres famously did.

So the Biben era begins, and the key question is this: What will the new direction be?

Well, there are two paths she can take. One is to follow the prosecutorial model. That is, investigate somebody. Here are some easy ones:

1.      Investigate Eliot Spitzer’s use of state resources to travel to Washington DC to have sex with a prostitute. It’s an easy investigation. In fact, the New York Times has done all the hard work already. Published reports show that he booked the prostitute before he booked the congressional testimony. Therefore, the state purpose for the use of the state plane was a pretense for the non-state purpose of the trip. This appears to be a clear violation of the Public Officers Law.

2.      Investigate Barry Ginsberg's solicitation of a new state job from officials he regulated. This appears to be  another clear violation of Public Officers Law. In fact, I know of a case where JCOPE imposed a fine on a much more sympathetic state employee for doing a similiar thing.

3.      Investigate the District Attorney’s Association’s registration status. This is a classic “Do as we say, not as we do” situation. It should be made right.

4.      Investigate the Ward Stone matter. Yes, investigate his conduct, but also investigate the leaking of the IG’s report. Who did it, and for what purpose?

The second path, which I think is more productive, involves a re-thinking of the role of the watchdog.

You could have a pit bull. And as the owner, you could “sic” it on whoever you think is a bad guy. A dog like that could take a big bite out of a person’s behind.  Even if the dog doesn’t bite it’s going to scare a lot of the folks it chases.

Or you could have one of those service dogs trained to sniff out drugs and bombs, or find a missing person. This is the better metaphor for JCOPE.

We need a highly-trained animal that sniffs out problems before they explode.

Under Ms. Biben’s leadership, JCOPE could do just that. For example, it could and should carefully review all of the lobbying and financial disclosure data it collects – and focus on problematic conduct proactively.

Keep in mind there’s all kind of conduct that may not be expressly illegal, but does raise fundamental questions of right and wrong. I and others would like to see JCOPE expose such conduct – especially in the area of special interest lobbying.

But whichever path Ms. Biben chooses, I wish her well.

Of course, I’ll be at the meeting today and in the weeks and months ahead. I’ll watching and reporting and doing my best to be constructive. And if Gershman and Confessore can’t find the time to study these ethics issues just listen to my growling and barking you might just find a story to write about.

Monday, February 27, 2012

Casey's an expert

The Times Union's Casey Seiler just posted a blog piece

about my recent proclamation that I may be done blogging about JCOPE missteps.

It's a factually accurate story so no complaints about that.  But I must admit I'm amazed that Casey would think anyone cares what I do or don't do on the blog.

But thats the beauty of a blog, everyone's an expert.

And knowing how much Casey prides himself on being a literary expert I have to ask:

Casey is bought-offedness really a word?

I would have thought the correct phrase would have been "of being bought off".

I'm sure I will see you at the meeting  Lets see if you are up to speed so you can ask JCOPE and Biben hard hitting questions.

I'll be waiting to see who picks up the role of gadfly.

Wednesday, February 22, 2012

Empty nest syndrome

It is spring break, my kids are off from school and hanging around the house and many New York lawmakers are having fun at the beaches and golf courses in Florida.

Now I don’t begrudge anyone a vacation. My attitude is: God bless ‘em and they seem to cause less trouble when they are not in Albany

At the same time, it probably ought to be noted that, so far at least, it’s been pretty quiet legislatively in Albany this year.

Even though this is an election year, there’s very little action. There simply hasn’t been the normal level of hearings, news conferences, rallies, etc.

In fact, someone told me the other day that fewer bills have been introduced this year than any time over the last decade. Of course, bill introductions aren’t a measure of success, but it probably is an indication of the level legislative activism.

This got me to thinking: What’s going on? Why the lull?

Now I don’t have an answer here. This post is like a Seinfeld episode in which I keep saying “hmm.”

Could it be that redistricting is the only thing that matters to lawmakers this year? Hmm.

Could it be that the Governor’s agenda now trumps everyone else’s? Hmm.

Have we entered a new era of post-partisanship? Hmm.

It occurs to me that after four years of a really raucous political climate in Albany, we now have an era of stability and calm.

Now that I think about it my kids have grown up as well, they’ve become calm and stable and the house this spring break is pretty quiet.

I guess this is good thing, but it seems so … weird.

Does anybody care?

The media and others may rejoice over this announcement, but this might be my last blog about JCOPE.  I don’t think anything I write on the topic of JCOPE or PIC before them matters, nothing ever seems to change.

Why do I say that?

 Teitelbaum was exposed and resigned but nothing changed.

Feerick was exposed and resigned but nothing changed.

Cherkasky was exposed and resigned but nothing changed.

Ginsberg was exposed and resigned but nothing changed.

PIC employees were exposed for the cockroaches they were and were fired but nothing changed.

JCOPE was created and I hoped things would change BUT

In addition to parking meter issues,

If you call JCOPE (and I did) and ask them to explain the recent eblast about business relationships and the expanded definition on lobbying here is the answer you get. . . “put your question in writing” when I asked what lobbyists were expected to do while we wait for our written questions to be answered I was told “read the lobby act” when I asked can you explain what it means I received an honest “no I can’t”.

Nothing has changed and I can’t blame Teitelbaum, Feerick, Cherkasky, Ginsberg, Ralph or the rest of the wack pack anymore.  I don’t believe the new commissioners know or care so who is left to blame?

I’ve come to the conclusion that this is just the way it is and no one cares so why should I?  My clients will follow my advice and if the JCOPE disagrees we can have that conversation in some other forum than the blog.

Sour grapes? Nope, just the last straw that broke this camel’s back.

And for the record I feel sorry for the employees that have not been briefed on the law they are being asked to enforce and explain to the lobbying community.

My last hope is that Ms. Biben will devote sufficient energy and focus to the non-prosecutorial sector of JCOPE.  While the administrative side doesn’t garner the headlines it serves to set the legitimacy table so that the prosecution of corrupt officials does not devolve into the political gotcha game that was the trademark of all the wannabe’s that preceded Ms. Biben.

It sure would be refreshing to blog about the accomplishments of JCOPE instead of my all too monotonous rants about how bad they are.  Maybe it’s time for the media to take over the role as the conscience of JCOPE.

Friday, February 17, 2012

Evaluate This!

I like this deal on teacher evals. It’s not going to change the world, but it will help make the educational system more accountable. It got me to thinking: Why not expand the concept? You could develop an evaluation system for just about anyone.

How about your barber? He or she could be graded on speed of service, sophistication of banter and, of course, the quality of the hair cut.

How about your doctor? He or she could be evaluated first on availability when needed, on the degree to which they seem to care about your welfare, and, of course, skill in diagnosis and treatment.

How about your spouse? He or she could be graded on ….well, since my wife occasionally reads my blog, I think I’ll skip this one.

The point is that an evaluation system could be created for just about anyone. What makes the most sense though, is doing it for those professions that don’t have a quality check imposed by market forces. Remember that if your barber sucks, you find a new one.

This is often not so with those individuals whose jobs are funded by tax dollars. Thanks to union protections and political influence, they often function without the rigid “produce or perish” reality of the private sector.

Don’t get me wrong here. I’m not on some rant against public employees. Instead, I’m simply posing the following question: What’s wrong with having an evaluation system for public employees that weeds out the underperforming workers and rewards good ones?

I actually think this makes a lot of sense, especially in those areas where there are no effective checks and balances.

Consider ethics enforcers. There’s no check on them at all. That was true of PIC and it’s true of JCOPE now. They make up the rules as they go along. They do whatever they want. (See my last unpunctuated post.)

So what kind of evaluation system could we develop for JCOPE commissioners? How about this for a start:

25 percent of the grade will be on commitment to openness.

25 percent of the grade will be for personal adherence to the ethics (and parking) laws.

25 percent of the grade will be for commitment to principles of fairness.

25 percent of the grade will be for relevance (defined as addressing problems that actually have a bearing on maintaining ethics in Albany.)

I ask again: Why not implement an evaluation system for ethics enforcers?!?

Wednesday, February 15, 2012

The power of the blog

This is going to sound self serving but I don’t care.  This morning I blogged about JCOPE’s mishandling of the new forms for introduction or the intended introduction of a bill as forming the basis for registration (see blog below “Define intended introduction”).

Well someone at JCOPE must have read the blog and gave staff their marching orders because at 3:25 this afternoon lobbyists got an email with detailed instructions about the new business relationship reporting requirements of the Act including a video tutorial on the subject (my critique will have to wait for another blog) and tucked in at the very end almost as if it was an oops afterthought was the following “Legislation or a resolution that has not yet been introduced(no number to disclose) should be reported in the “Bill, Rule, Regulation or Rate Number” section of the form by giving a brief description of the intended legislation or resolution”  AWESOME  

While I applaud those responsible for at least trying to help the lobbying community understand what they need to do, CAN SOMEONE PLEASE DEFINE WHAT INTRODUCTION OR INTENDED INTRODUCTION MEANS.

Am I lobbying if I get paid more than $5000 to say to a legislator “It would be great if the state had a law that made it a crime for JCOPE bureaucrats to continue to act like clowns by imposing rules on people without guidelines or opinions”?

Or is the District Attorneys Association lobbying when their chairwoman states that she plans “to ensure that our voice is heard in Albany on all matters of public safety."?

What if she wanted legislation passed that exempted JCOPE’s Chair from having to put quarters in parking meters?

I think you get the point.

Define intended introduction

I feel like I’ve written this blog a thousand times.  The PIC ooops The JCOPE has done something stupid, foolish, asinine, tone deaf, incompetent, pick your adjective, again.

I forgot how comforting it was the last 6 or 7 months when they were forced by statute to go into suspended animation.  And I hoped that a new group of commissioners would upgrade the professionalism and skill level at the commission but alas top staff never ceases to shoot the commission in the foot at every opportunity.

What is it this time?  Well, probably only 2 or 3 people would notice but JCOPE is attempting to enforce one of the new sections of the law dealing with the definition of lobbying.  The statute amended the definition of lobbying to broaden it by now including the introduction or intended introduction of legislation or resolution.

The JCOPE has changed its forms to now require all lobbyists to list a “brief description relative to the introduction or intended introduction of legislation or resolution”.

I can almost hear the staff meeting that resulted in this.  Top administrators worried that the change in the law went into effect January 1 but the forms don’t reflect it.  So they change the forms.  When lower level staff asks what does introduction or intended introduction mean, they are ignored or told to do their own jobs.  The forms are changed BUT

No announcement is made about the change.

No guidance is provided about what the change means.

No guideline is issued to define what an introduction or intended introduction is.

No opinion is issued to define what an introduction or intended introduction is.

No change is made to the instructions for filing it still reads exactly as it did before the change.

No change is made to educational material found on the website specifically the late filing tutorial it still reads exactly as it did before the change.

In short no one knows the what or the why just that the form says to provide the brief description.

It’s like the last four years all over again.  The commission that can’t shoot straight.

And for those that say relax its self explanatory answer this question for me:

If an organization runs a television or print advertisement congratulating or criticizing an elected official for their stance on an issue that may be the subject of legislation sometime in the future have they lobbied necessitating their registration because the advertisement could be interpreted to be intended to influence the introduction of legislation?

Duh, that’s why you can’t change the forms without some forethought.

It’s a slippery slope and the duffeycrats at JCOPE are willing to give you a shove over the lip, but don’t expect them to clean up the mess at the bottom.

Ms. Biben when do you start?  Someone needs to change most of the people driving this train to stupidity.

Friday, February 10, 2012

About that Registration…

Pretend for a moment that you are a top ethics regulator.

Someone comes to you and says: “Hey, why don’t you just look the other way on this matter? It’s no big deal.”

What will your response be?

Will it be: “Sure. No problem. Just forget about it.”

Or will it be: “No. I can’t do that. The law is the law, and everyone must follow it.”

If you are a serious and conscientious ethics regulator, you will do the later.

And this is the way it’s supposed to work. Unfortunately, it’s not working that way in New York right now.

Our state’s top ethics regulator, as pointed out by the Wall Street Journal today, serves a dual role. She is the head of JCOPE and the head of the District Attorneys Association, which lobbies on a variety of issues.

The reporter, my old friend Jacob Gershman, points out that this could present a conflict of interest. Jacob consulted several people who basically said that the whole thing was no biggie – that any conflict could be managed.

Unfortunately, Jacob and everyone he talked to missed the key point -- a point that was first made in my December 15th blog:

Neither the District Attorney’s Association nor its head are properly registered to lobby.

That’s right. The association and its head, who also serves at JCOPE head, aren’t registered with JCOPE or COPI before them.

Now back to the original construct: Remember now, you are a top ethics regulator. You’re a serious and conscientious person who is committed to doing the right thing. In fact, you have been quoted in the papers saying that you “always follow the rules.” That’s the way you “lead your life.”

Soooooo, what do you do when it is revealed that you might not have been following the law you’re supposed to enforce?

Do you:

(A) Lash out at the person who points out the problem?

(B) Continue to act as if you’re above complying with the law?

(C) Admit your mistakes and correct the problem?

(D) Quit

I know what I’d do -- but then again, I put quarters in the parking meter.

Thursday, February 9, 2012

So, Now What?

At long last, JCOPE is ready to rock n roll.

Ms. Biben is aboard. She knows this town in ways that Ms. DiFiore does not. She’s also much more attuned to appearances than Ms. DiFiore. (Hopefully, she will use the parking garage right across the street.)

Under Ms. Biben’s leadership, JCOPE can now start the process of becoming truly operational.

Well, almost… First, there’s the matter of staffing. Ms. Biben can’t do much with a skeleton crew and no investigators. She can’t do an adequate job of reviewing complaints that have been filed. She can’t respond to requests for opinions, settle cases or consider the tips that have amassed over the last several years.

But one has to believe that she has the ability, given her stature in the legal community and standing with the Cuomo administration, to quickly add qualified staff. (Certain PIC retreads are not the way to go. Read the blog entry from June 20, 2011 for more on this.)  But before you staff, think about what you want the new JCOPE to be working on.

And when staffing issues are resolved, then what? Well, the key is prioritizing, and this is where I’d hope the JCOPE commissioners and Ms. Biben have a serious discussion and recognize that their success or failure is NOT entirely dependent on their prosecutorial prowess.

Instead, it depends on their relevance. Now, in this regard, I want to make a recommendation on two specific areas that warrant JCOPE attention.

But first, a note to the smart ass Confessores and Gershmans of the world, who selectively read my blog and see only criticism of ethics officials and the administration: Gentlemen: In my own way, I have always sought to be constructive, especially, initially, with those charged with enforcing ethics laws. I want these officials to succeed. That they continually disappoint is a great source of frustration for me.  That’s one of the key points of my blog.  To the extent you find my commentary one dimensional stop reading the blog or better yet start developing your own reputations for integrity.  I’m comfortable that I’ve walked the walk long enough to voice my opinion.

Now for the recommendation: This is 2012. Influence is wielded differently today that it was in years past. In the bad old days, a lobbyist would meet in a backroom over cigars and cocktails with a politician and make a deal that went something like this: “If you block this bill for us, we’ll make sure your campaign coffers will overflow.”

Today, thanks to disclosure requirements and campaign finance limits such deals don’t get made so easily or so often.

Today, the game is played differently. What happens now is that “special interests,” which range from the totally righteous to the really unseemly, have to work a lot harder. They have to build coalitions, organize at the grassroots level, poll, run media campaigns, and win public support in order to advance their agenda. And if they want to “rent” a lawmaker, then they have to bundle contributions.

By the way I started talking about this 10 years ago when I was still running the old Lobby Commission, does anyone remember the hip hoppers and helicopter investigation?

I don’t have a problem with the first part of that equation. As a First Amendment guy, I’d even say its people’s right to run such campaigns to influence public policy. That said, I think there ought to be greater disclosure by those involved in such efforts, and a specific effort by JCOPE to review their campaign-style activities to ensure compliance with all existing laws.

With regard to the second part of the equation, I think JCOPE ought to be proactive in investigating bundling*. I think this is the area that really violates the spirit of campaign finance law and perverts our system of governance.

Another note to the snarky Mr. C and G: Yeah, I think the administration should face the same scrutiny as everyone else. Of course, the Committee to Save New York should be reviewed, and, of course, the Governor’s remarkably successful fund raising operation should be looked at. I don’t know that they’ve done anything wrong, I, frankly, doubt it, but that doesn’t mean there should not be a thorough review.

There is definitely a new way of doing things in New York and other states, too. Lobbying campaigns are more like election-style campaigns. At the same time, more money than ever is being raised by political candidates, in part through bundling.

If JCOPE commissioners want relevance, and want to do something that is both timely and in the public interest, they’d look into these two areas.

* Of course, the challenge for JCOPE is that it has no express authority to investigate matters related to campaign finance. One can look at this in two ways: One way is to throw up your hands and say: “Yup, never mind.” Or, one could find a jurisdictional hook or some way to shine a light on the problem, if only by writing a report. Think about it this way: PIC could weigh in on hors d’ouvres being a potential way to influence lawmakers, but JCOPE can’t opine on perhaps the greatest influence scam of our day – bundling? Go figure.  Here’s an unsolicitated thought, JCOPE could investigate the members of the Board of Elections for a potential violation of the Public Officers Law section 74 (h) related to bundling, wow wouldn’t that be something to see. 

Thursday, February 2, 2012


JCOPE’s New Leadership

I am shocked, not about Ellen Biben’s appointment, that’s a pleasant surprise.

I am shocked that none of the media folks that contacted me today for comment used any of the things I had to say about the appointment.

So to the extent I can be my own media outlet here is what I think.

Is Ellen Biben a first-rate attorney? Yes, there’s no question about that.

Can Ellen Biben do the job at JCOPE? Absolutely, she’s proven herself a capable administrator.

Will Ellen Biben be independent? I’d bank on it.

Will she understand the proper role of the state’s top ethics enforcer? I hope so, but I don’t know for sure, and only time will tell about this point.

Let’s drill down on those last two matters:

Will she be independent? This is the concern of some pundits. They think that because she’s a former Cuomo staffer, she must be in the tank. I disagree. Ms. Biben was a career prosecutor who had a life before her association with Andrew Cuomo. She established a rock solid reputation for herself. Is she going to throw that away now and become a hack? No, that’s not going to happen.

(Remember that I was a Joe Bruno appointee. I had great affection for him, but I wasn’t going to let him or anyone else tell me how to do my job. This is the only attitude to have.)

Will Ms. Biben understand the proper role of being E.D. at JCOPE? I’ll break this down into two broad areas:

First, will she be both aggressive and fair? I think she’s proven to be both as IG. Some people may say that there haven’t been a lot of cases advanced by her office, but those who say that don’t understand the lag time between investigation and resolution. Any new IG (or AG) spends his or her first year putting the office in order and launching investigations. Results come later on. In this regard, all the reports I have read indicate that she has done a good job and has earned the respect of her staff. (This alone will set her apart from the Teitelbaums, Cherkaskys, Feericks and Ginsbergs of the world.)

Second, does she get the intangible ‘it?” Does she know what JCOPE really is and what it isn’t? I really have my doubts that Janet DiFiore gets it. Yes, Ms. DiFiore is a tough prosecutor, but she thinks she’s running a DA’s office when in Albany.

My fear about the Biben selection is only that as a former prosecutor Ms. Biben will have the same bent as Ms DiFiore.  But only time will tell.