http://www.nytimes.com/2007/08/13/nyregion/13ethics.html

The New York Times

August 13, 2007

With Spitzer Inquiry, Albany’s Eyes Are on Ethics Panel Just as It Is Changing

By NICHOLAS CONFESSORE

ALBANY, Aug. 10 — In 39 years as a litigator, Herbert Teitelbaum, who became executive director of the State Ethics Commission last month, sued Boston to let college students vote. He sued school officials in Philadelphia for not providing better English instruction for Hispanic children. And he took on the cities of White Plains, New Rochelle, Mount Vernon and Yonkers for discriminating against blacks applying for jobs as firefighters.

“I say to clients, ‘I take the case wherever it goes,’ ” Mr. Teitelbaum said recently, sitting in his new office. “Wherever it takes me, I follow it.”

Even, perhaps, to the inner sanctum of Gov. Eliot Spitzer. Last month, the commission’s investigators began a preliminary review of whether Mr. Spitzer’s aides violated ethics laws when they asked the State Police to help them gather damaging information on the Senate majority leader, Joseph L. Bruno, the state’s top Republican and Mr. Spitzer’s chief antagonist.

It is perhaps the biggest test that the commission — long criticized by watchdog groups as overly secretive and glacially slow to act — has faced since its creation 20 years ago. And it comes just before the commission is poised to take on a new, more prominent role on the capital’s ethics beat. On Sept. 22, the Ethics Commission will absorb another state body, the Lobbying Commission, and become a new Commission on Public Integrity, with jurisdiction over employees of the executive branch and the thousands of lobbyists who work each day to sway them.

The new commission will inherit most of the staffs and continuing investigations of its two precursors. But it will also have broader powers and a larger, 13-member board. Most of the new board will be appointed by Mr. Spitzer.

“Obviously this is a tricky situation,” said Russ Haven, the legislative counsel for the New York Public Interest Research Group, referring to the commission’s preliminary inquiry into the governor’s staff, “partly because it’s a big matter, and partly because it will be an early predictor of how the new commission will perform.”

The effort to tarnish Mr. Bruno was detailed in a report last month by Attorney General Andrew M. Cuomo, roiling Albany and leading to calls from Republican officials for a special prosecutor. Mr. Spitzer rebuffed those calls but said he would gladly testify under oath before the Ethics Commission, which has subpoena power.

But Republicans declared the commission untrustworthy, noting that its new chairman, John D. Feerick, and another member of the five-member board were appointed by Mr. Spitzer. They have also complained that partners at Mr. Teitelbaum’s former law firm, Bryan Cave, have made campaign contributions to the governor. “They’re not elected by the people,” Mr. Bruno said of the commission members during a recent radio appearance. He added, “They’re not unbiased, objective people.”

Even some people without a personal and political stake in the matter have doubts about the commission. With a staff of 20, the commission currently has jurisdiction over 250,000 executive-branch employees, who submit 26,000 financial disclosure forms a year. Under state law, it serves in an awkward dual role, both providing confidential advice on ethics to state employees and imposing fines or recommending other punishment in some cases.

Partly for that reason, according to Mr. Teitelbaum and others, the commission’s board is required to meet and deliberate in secret. Most advisory opinions it issues remain confidential; a smaller number of opinions, typically those on questions that have not previously come before the commission, are made public but redacted of personal information. All the paperwork is locked away among the ranks of massive dull gray cabinets that dominate the commission’s offices.

“It’s very much like an attorney-client relationship,” said Karl J. Sleight, the previous executive director of the commission, who is now in private practice. “Enforcement is part of the mission. But their primary mission is as counsel to executive-branch employees. The goal is to prevent people’s reputations from being destroyed inappropriately.”

When the commission issues an advisory opinion on ethics law, its critics say, it sometimes interprets the law too expansively. Case in point: During the 1990s, the commission advised the Pataki administration that public officials could use state aircraft on trips that included nonofficial business like fund-raising events, so long as the trips also included at least some official business.

Such trips by Mr. Bruno were what Mr. Spitzer’s aides were hoping to learn more about, Mr. Cuomo found in his report, when they set the scandal in motion by asking officials of the State Police to recreate the senator’s travel itineraries.

“This whole travel issue has arisen because the Ethics Commission has refused to draw a bright-line standard,” Mr. Haven said.

What kind of standard they set for Mr. Spitzer may not be clear for weeks. The commission does not typically divulge whether an investigation is under way in any particular case, unless the board votes to issue a notice of reasonable cause, indicating that it believes that a violation of state ethics law may have occurred. Last year, the commission issued five such notices.

One of them went to Alan G. Hevesi, then the state comptroller, making him the only statewide elected official whom the commission has ever found in violation of state ethics laws. P. David Soares, the Albany County district attorney, used that finding as the basis for a criminal investigation that ended with Mr. Hevesi’s resigning and pleading guilty to charges of fraud.

The commission’s defenders point to the Hevesi case as a model for how any potential investigation of a governor would progress. That inquiry was completed in less than a month, and a commissioner appointed by Mr. Hevesi recused herself from voting on the final determination.

“I think the biggest criticism might be that it has not taken on the full array of what it governs,” said Barbara Bartoletti, legislative director of the League of Women Voters of New York State. “But it did undertake Hevesi.”

Ms. Bartoletti and others praised Mr. Feerick, a former dean of the Fordham University School of Law and an acclaimed ethics expert, saying his involvement promised a more aggressive posture by the commission and its successor.

“Perhaps we’re putting all of our eggs in one basket, but certainly with Feerick driving it, we can at least be sure they will follow their mission,” she said.

The commissioners currently serve staggered five-year terms, with the comptroller and attorney general each appointing one member and the governor appointing three.

When the new commission comes into being next month, Mr. Spitzer will appoint 7 of the 13 commissioners, with the rest appointed by the comptroller, the attorney general, and both the minority and majority party in each legislative house. Mr. Feerick will be reappointed chairman, Mr. Spitzer has said. Mr. Teitelbaum will need to be reappointed by the new board, as he was by the current board.

Until the new commission is formed, two of Gov. George E. Pataki’s appointees remain on the board, along with Mr. Feerick. So do Mr. Hevesi’s appointee and one made by Mr. Spitzer when he was still attorney general. Though the terms of both appointees have expired, neither Mr. Cuomo nor Mr. Hevesi’s successor as comptroller, Thomas P. DiNapoli, has gotten around to naming a replacement.

Mr. Cuomo is still reviewing candidates for the job, according to a spokesman for Mr. Cuomo, Jeffrey Lerner. Dennis Tompkins, a spokesman for Mr. DiNapoli, said the comptroller was now doing the same, six months after taking office.

“It didn’t seem like a real hot issue at the time,” said Mr. Tompkins.

Copyright 2007 The New York Times Company