Charged With Regulating Conflict of Interests, Ethics Commission Hid Its Own

New York’s transparency watchdog found that the ethics commission violated open records law by redacting its own recusal forms.

Chris Bragg   ·   April 17, 2024
The ethics commission requires members to flag potential conflicts on a disclosure form. It doesn't believe that information should be public. | Logo: COELIG | Illustration: Maia Hibbett

UPDATE: April 17, 2024 — After this story was published, the Commission on Ethics and Lobbying in Government released unredacted copies of its commissioners’ conflict of interest forms. This story has been updated to include the unredacted versions of the documents and an additional comment from a COELIG spokesperson.

At a meeting last month, the chair of New York’s ethics watchdog agency praised its staff for their quick processing of the public’s Freedom of Information Law requests. The achievement, he said, showed the body’s commitment to “ultimate transparency in how we do our business.”

But the agency’s commissioners may not share that commitment when it comes to their own affairs. Two days earlier, Commission on Ethics and Lobbying in Government (COELIG) staff had fulfilled a FOIL request about the commissioners’ personal potential conflicts of interest — and redacted all information about relationships that could force commissioners to recuse themselves from votes.

That action ran afoul of New York’s open records law, according to an opinion the state government’s transparency watchdog agency issued on Tuesday. But that opinion is not legally binding; the commission could choose to continue to withhold the information. The commissioners discussed the matter at a meeting on Wednesday.

The commissioners adopted a policy in January requiring them to submit “recusal memorandums” in which each commissioner lists people or organizations — such as employers, relatives, or creditors — that could pose potential conflicts of interest between their private lives and public duties. The commission enforces ethics laws for state employees and lobbying laws for lobbyists, and, according to its code of conduct, commissioners should recuse themselves if a “direct or indirect” interest may conflict with these responsibilities.

The commission implemented the memorandum policy to help staff flag impending conflicts and proactively withhold information from commissioners when needed. But its staff didn’t seem to believe that information was for public consumption: In response to an open records request seeking the completed forms, filed by the state’s former top lobbying enforcement official, the body’s staff redacted every entry on every person or organization listed by every commissioner.

COELIG chair Frederick Davie told New York Focus that he had always assumed the information would not be publicly released, but that he would discuss the issue with the full commission at Wednesday’s meeting.

“It has been the assumption of some of us that this list of potential conflicts was for our and staff’s internal use only in determining whether or not a commissioner’s recusal might be required in the future,” Davie said. “We saw it as an extra step in making staff and each other aware of such future contingencies. I want to know if that assumption is shared by all commissioners.”

After publication and the meeting on Wednesday, the commission released unredacted copies of the disclosure forms.

“Consistent with our prior communications and after discussion among Commissioners and staff, the Commissioners have elected to make public their non-exhaustive and contingent lists of potential recusal subjects,” COELIG spokesperson Emily DeSantis said in a statement provided after publication. “This does not indicate agreement with the Committee on Open Government’s analysis or the opinion it has expressed. The lists were not required by law but were created by Commissioners to facilitate a function that, under governing law, must be nonpublic.”

The ethics watchdog proceeded with the redactions even as the state government more broadly has faced increased scrutiny over recusals, conflicts of interest, and disclosure. Last decade, former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos were convicted of federal corruption charges that centered on their use of government power to benefit personal business interests.

When Governor Kathy Hochul took office, she released a recusal agreement that prohibited her from taking action to benefit her husband’s employer. This year, New York Focus revealed that Assembly Speaker Carl Heastie had declined to disclose a months-long romantic relationship with a legislative lobbyist or to publicly release his recusal policy.

As the ethics commissioners have kept their own potential conflicts hidden, they are responsible for prohibiting other public officials from bringing substantial conflict between private interests and public action.

Ethics commission staff redacted every entry on every person or organization listed by every commissioner.

Since COELIG’s inception in 2022, its members have emphasized their commitment to transparency as a means of restoring faith in New York’s ethics oversight apparatus. A predecessor body that was formed under the governorship of Andrew Cuomo, the Joint Commission on Public Ethics, was criticized by editorial boards and government reform groups for its secrecy.

Hochul, who oversaw COELIG’s formation, promised it would bring greater transparency. The 2022 law creating the agency made it subject to the state’s Freedom of Information Law, a major distinction from its predecessor, which was exempt. FOIL presumes that state government documents should be available to the public, except when an agency can cite a legal argument for withholding it.

In response to the open records request seeking the commissioners’ recusal memos, filed by attorney and former top lobbying regulator David Grandeau, a COELIG staffer wrote that the records were “intra-agency materials” — an exemption typically used to protect internal deliberations while agency staff formulate a policy. That classification applies because the commissioners’ memos are addressed to their fellow commissioners and staff, staff argued.

Denying Grandeau’s appeal of the redaction decision, COELIG general counsel Keith St. John wrote that the commissioners’ responses constituted their “opinion and speculation” about potential conflicts of interests, not facts.

In response to questions from New York Focus, DeSantis stated that the commissioners’ submissions were “non-final and tentative entries.”

In its opinion on Tuesday, the Committee on Open Government disagreed.

“The list of names contained within a commissioner’s mandatory memorandum of recusal is factual information which must be disclosed,” the committee’s deputy director Kristin O’Neill wrote, as such names are “‘objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of governing decision making.”

The Committee on Open Government is charged with issuing opinions about whether state agencies are following the Freedom of Information and other state transparency laws. While its opinions are non-binding, they are often cited in litigation when a party is seeking access to records.

Even if COELIG was legally correct that it could withhold the records, nothing in the Freedom of Information Law would require it to do so. With or without an exemption, the ethics commission is free to release unredacted records in this instance.

Chris Bragg is the Albany bureau chief at New York Focus. He has done investigative reporting on New York government and politics since 2009, most recently at The Buffalo News and Albany Times Union.
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