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June 30, 2010

STATE BAR PRESIDENT STEPHEN P. YOUNGER CREATES TASK FORCE ON GOVERNMENT ETHICS

Panel of Experts Will Examine Key Questions Relating to Government Ethics

DOES NEW YORK NEED AN ANTI-CORRUPTION LAW?
WHAT ENTITY IS BEST EQUIPPED TO PATROL GOVERNMENT ETHICS?
WHAT IS THE APPROPRIATE LEVEL OF DISCLOSURE FOR ATTORNEYS WHO WORK OR VOLUNTEER IN GOVERNMENT?
WHAT DUE PROCESS PROTECTIONS SHOULD BE AFFORDED TO THOSE CHARGED WITH ETHICS VIOLATIONS?
WHAT REFORMS ARE NECESSARY WITH RESPECT TO LOCAL GOVERNMENT ETHICS?

With the public rapidly losing confidence in government and other public institutions, and in the wake of the United States Supreme Court's decision narrowing the federal law often used to prosecute government corruption, New York State Bar Association President Stephen P. Younger of New York (Patterson Belknap Webb & Tyler LLP) today announced the formation of a new Task Force on Government Ethics. The panel, comprising independent experts drawn from diverse backgrounds, including government ethics experts, current and former prosecutors and criminal defense lawyers, academics, and local government practitioners, will undertake a systematic review of public sector ethics issues that impact the legal profession.

"Despite the many positive contributions made by public servants, New York's citizens have lost confidence in the integrity of their government institutions," said Younger. "To regain their trust, we need comprehensive ethics proposals that will restore New Yorkers' confidence in government.

"The U.S. Supreme Court's recent decision making it less likely that government officials can be prosecuted under the 'theft of honest services' law makes it particularly important that we review the entire area of government ethics and the statutes that allow for enforcement," added Younger.

Co-chaired by Professor Patricia E. Salkin, associate dean and director of the Government Law Center (Albany Law School) and Michael J. Garcia (Kirkland & Ellis LLP of New York), the former United States Attorney for the Southern District of New York, the task force and its subcommittees will focus on five key issues:

Does New York need a state anti-corruption law?

New York currently lacks a comprehensive anti-corruption statute. Our new task force will examine whether New York should adopt a statewide anti-corruption law and, if so, what components should be contained in such a law. 

What entity is best equipped to patrol government ethics?

There are currently multiple enforcement agencies that interpret and enforce the ethics laws in New York State.  Unfortunately, the result has been conflicting interpretations of the same language setting out ethical boundaries. As well, there is a serious issue regarding the independence of our ethics watchdogs. Our task force will recommend which regulatory or law enforcement agency is best equipped to monitor government ethics.

What due process protections should be afforded to those charged with ethics violations?

When multiple agencies with different statutory mandates and jurisdiction initiate simultaneous investigations, the potential exists for due process violations and uncertain applicability of procedural and substantive standards. The task force will study these issues and make recommendations to ensure that appropriate protections are afforded to those under investigation.

What is the appropriate level of disclosure for attorneys and other employees who work or volunteer in government?

In New York's state government, financial disclosure has been required since passage of the Ethics in Government Act in 1987. While expanded disclosure to prevent conflicts and advance transparency is a desirable goal, it can also have a chilling effect if it is too severe. Government workers should have to disclose what is needed to assure the public that they are free from conflicts. But there are countervailing interests. The task force will look at privacy rights of government employees.  It also will consider disclosure issues related to private attorneys serving in government, including elected officials, who may be forced to reveal the identities of their clients.

What reforms are necessary with respect to local government ethics?

New York lacks a single, statewide entity charged with coordination, oversight and enforcement of local government ethics. Recognizing the diversity in size and geography of these municipal governments, the task force will study various options for reform to ensure that all public officials and appointees at the local level are presented with a clearly articulated set of rules that cover myriad ethics issues that confront them on a routine basis.

Mr. Younger said, "Each new scandal and investigation involving a public official chips further away at public confidence in our government.  Unfortunately, in this climate, thousands of ethical and hardworking public servants are often painted with an overly broad, negative brush. As this issue plays out across our state and nation, we risk scaring the next generation of government leaders away from public service. By recommending how to clarify the ethical lines between right and wrong, by clearly defining lines of enforcement responsibilities, and by creating a balance between an attorney's obligation to his client and the public's right to know, we will help restore faith in our democratic institutions.

"This task force will examine these issues in an independent, reasoned manner. Our recipe for ethics reform must include an emphasis on transparency, tempered by common sense," Younger concluded.

The work of the task force will be framed by a set of "Guiding Principles on Government Ethics" adopted by the State Bar's Executive Committee last January. These principles recommend that ethics laws should promote transparency in government; should be enforced on an independent basis; provide clear rules that are fair; should safeguard due process; and should allow full participation by lawyers in government service.

The task force recommendations will form the basis of a report expected to be submitted to the Bar Association's House of Delegates in early 2011.

Mr. Younger noted that the task force can also make recommendation on any additional topics it may wish to explore. 

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The 77,000-member New York State Bar Association is the official statewide organization of lawyers in New York and the largest voluntary state bar association in the nation.  Founded in 1876, NYSBA programs and activities have continuously served the public and improved the justice system for more than 130 years. For more information, please visit www.nysba.org.