Pur Autre Vie

I'm not wrong, I'm just an asshole

Wednesday, November 05, 2014

Cuomo and Moreland

It has become fashionable to believe that Governor Cuomo is corrupt or at least unethical, based on his handling of the Moreland Commission to Investigate Public Corruption.  The charge, as I understand it, is that Cuomo disbanded the commission prematurely.  This confuses me, because my reading of state law would seem to indicate that the governor can hire and fire a Moreland commission basically at will.  The law is a fairly short one, and so I will reproduce it here in its entirety (you can ignore the second paragraph, which basically says that serving on a commission won't interfere with your pension rights):

Examination and inspection by the governor. The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.

Notwithstanding any inconsistent provision of any general, special or local law, charter, administrative code or other statute, service rendered by a person appointed by the governor pursuant to this section shall not constitute or be deemed state service or re-entry into state service under the civil service law, the retirement and social security law or under any charter, administrative code, or other general, special or local law relating to a state or municipal retirement or pension system so as to suspend, impair or otherwise affect or interfere with the pension or retirement status, rights, privileges and benefits of such person under any such system or to interfere with the right of such person or his beneficiary to receive any pension or annuity benefits or death benefits by reason of the selection of any option under any such system.
The law is contained in Section 6 of the Executive Law.  A few things are noteworthy.  First, a Moreland commission is an executive body.  Far from being independent, it is so intertwined with the office of the governor that the governor himself can effectively constitute a one-man Moreland commission.  Second, the powers of a Moreland commission are sweeping and discretionary.  A Moreland commission doesn't have to be even-handed or answerable to anyone but the governor.  So for instance, if a Moreland commission issues a subpoena, I highly doubt you could convince a court to quash the subpoena on the grounds that the Moreland commission should also be issuing a subpoena on someone else.  The existence of other potential targets for investigation has very little to do with the price of tea in China.

Now, I'm not saying a Moreland commission couldn't abuse its powers.  But normally one would expect abuse to take the form of overreaching:  harassing political enemies, issuing sweeping subpoenas, that kind of thing.  The charge here seems to be that Cuomo did the opposite:  he prevented his commission from issuing enough subpoenas, etc.  It's a bizarre charge to level against a governor who was under no obligation to establish a commission in the first place.

Again, one can imagine scenarios in which this would nevertheless constitute corruption.  For instance, if someone paid money to Cuomo in return for disbanding the commission, that would almost certainly constitute bribery.  I've seen no allegation of that, though.  My understanding is that the commission made some recommendations and Cuomo acted on them.  Then he disbanded the commission.  Some commissioners said, "Wait, we're not done!"  Cuomo said, "Yes you are."

Remember that Cuomo could have, in effect, "appointed himself" to conduct the investigation that he instead delegated to the commission.  Would it have then been illegal or unethical to stop investigating once Cuomo was satisfied that the investigation was complete?

Now, one can mount a different charge against Cuomo.  One could say that his behavior was neither illegal nor unethical, but that he should have conducted a more thorough investigation of public corruption.  But this strikes me as a fairly toothless argument.  There are many things that Cuomo should do, in the abstract.  It would be very nice, for instance, if he supported a law equalizing the taxes applicable to Uber-style car services and taxicabs.  But for whatever reason, people think that his failure to conduct a more thorough investigation into corruption is somehow worse than his failure to do any number of other sensible things.  In fact, people think that Cuomo's failure to conduct a more thorough investigation into corruption puts him beyond the pale, even though as far as I can tell only one of his predecessors (his father, as it happens) has ever appointed a Moreland commission to investigate public integrity.  (The Moreland Act has been on the books since 1907.)  If that's what you believe, then you must also believe that Al Smith and Franklin Roosevelt (by way of example) were so reprehensible that it was essential to vote them out of office in order to send a message.  (Unless you believe that corruption was less prevalent in New York in the 1920s and 1930s than it is today, thus excusing their inaction.)  Which would also seem to imply that it would have been unacceptable to support either man for the presidency.  Which is just crazy, since FDR was probably the best President of the 20th century, his Cuomo-like Moreland failures notwithstanding.


Blogger Alan said...

Like presumably many of the people who got the impression that Cuomo handled this unethically, the entirety of my information came from this Times article and its accompanying timeline. So I'm not really up on the issue, but I feel like, taken at face value, this Times stuff is making a reasonable and straightforward case that Cuomo acted unethically -- not especially unethically or unusually unethically, but unethically nonetheless.

I'm not going to reread it, but my recollection is the argument goes like this: (i) Cuomo emphatically promises to thoroughly root out corruption in Albany; (ii) he creates a Moreland Commission to this end, promising that it will conduct an independent and sweeping investigation; (iii) when the commission tries to investigate certain of his or his associates' dealings, his administration refuses to cooperate (while otherwise cooperating with the commission); (iv) the commission complains and pushes; (v) the administration continues to stonewall, all the while continuing to proclaim the commission's independence and government-wide scope; and (vi) Cuomo abruptly disbands the commission, suddenly changing his tune from independence to the letter of the Moreland Act.

Again, I don't know if the foregoing is accurate. I haven't done my own investigation. But if it is, it sure looks like Cuomo broke a promise in order to keep certain of his dealings under the rug. I agree that this doesn't put him beyond the pale, but how is it not at all unethical?

You seem to be saying it can't be unethical, because Cuomo had no obligation to investigate at all. I'm not sure this is correct, and in any event it proves too much. First -- and you raise this possibility -- arguably a New York governor today does have an obligation to seriously and sweepingly address corruption, given its salience and severity. Second, Cuomo apparently ran on the premise of having this obligation and the promise of fulfilling it. Third, once a governor decides to investigate, he must abide by ethical standards. Even if Cuomo technically could have appointed himself commissioner and only investigated people he didn't like, that would have been unethical. The Times is alleging that he did something different in degree but not in kind.

I am open to the possibility that the allegations against Cuomo are misleading and/or overblown, but I don't think they're nonsensical.

10:31 AM  
Anonymous Anonymous said...

It’s hard for me to read this post as anything other than motivated reasoning. I simply don’t believe that anyone would ever make these arguments if the hadn’t decided they were going to support Cuomo not matter what before they even began considering the issue. For example, the argument that any action within someone’s legal authority cannot be unethical is not a argument that you have ever seriously advanced in another context, and you would in other context dismiss it as laughably bad.

10:41 AM  
Blogger Alan said...

That said, I'd agree with you if the commission had consisted of this guy.

11:07 AM  
Blogger James said...

I'll have a more thorough response, but in the meantime
I would be obliged if someone could point out the place where I argue that "any action within someone's legal authority cannot be unethical."

8:21 PM  
Blogger Grobstein said...

You: "The charge, as I understand it, is that Cuomo disbanded the commission prematurely. This confuses me, because my reading of state law would seem to indicate that the governor can hire and fire a Moreland commission basically at will."

You then spend a bunch of effort arguing that Cuomo had the legal right to disband the commission.

It is evident that you want us to interpret this as an argument that it was not unethical for Cuomo to disband the commission. To make that argument work, we have to supply a hidden premise, the most obvious candidate being: anything Cuomo had the legal right to do cannot have been unethical. Barring some such principle, what you say about legality seems irrelevant.

You suggest that you are "confused" by the ethical charge, "because" there is no legal breach, which suggests that Cuomo's behaving within his legal rights relating to the commission is a conclusive defense against any "charge" of unethical behavior.

I'm finding it hard to see how you don't get the implicature you were making.

3:24 PM  

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