UPDATED: Ethics Commission Opinion: Did they overstep their Authority?
I’ve bumped this post because we received a response from the Committee on Open Government
Following up on our post yesterday about the NYS Ethics Commissions opinion concerning the use of State resources (namely aircraft) for political purposes, we are proudly able to bring you the following analysis.
Liz Benjamin, over at Daily Politics, breaks down the requirements for so-called “mixed-use travel” as set forth in yesterday’s opinion:
- There must be a bona fide state purpose for the trip.
- The state purpose must be the primary reason for the trip.
- The public official must make an accurate apportionment of the time spent between state and non-state business and promptly reimburse the state for the portion of the trip that wasn’t related to state business.
- Such reimbursement must be based on current airplane charter costs.
- The official must provide the executive chamber with details of the activities upon which the allocation between state and non-state business is based, information that the commission expects will be available to the public through a FOIL request, except to the extent that the disclosure of that information would jeopardize the security of the public official.
I feel these new requirements are a major step forward in the effort to restore the rule of law in NYS Government. Unfortunately, based on my understanding of NYS Law (which is admittedly limited), the Ethics Commission may have overstepped their authority in this opinion.
Specifically, the Ethics Commission opinion makes three references to the required information being made available under the Freedom of Information Law (FOIL). While I think this is a much needed turn of events, I don’t think the NYS Ethics Commission has the authority to dictate how FOIL is implemented. According to my understanding, the power to issue advisory opinions on FOIL rests solely with the NYS Committee on Open Government (COOG). Therefore, while the Ethics Commission obviously had the public interest in mind, I would wager public officials will still be able to keep information related to “mixed-use travel” from the public because the agency authorized to issue opinions, COOG, has not chimed in on the topic. Until they do, I am not confident the Ethics Commission opinion will be followed, at least in spirit.
We have requested an advisory opinion on this topic from COOG. Unfortunately, it may take a while before we hear back, so stay tuned for an update when we hear a response…
UPDATE: We’ve received the following response from the COOG:
This is to acknowledge receipt of your inquiry. Due to a substantial
backlog, a response will be prepared within two to three months.Robert J. Freeman
Executive Director
If any of our readers have any connections, let us know, we would really like to have this opinion before Christmas.
hey thanks for the nod of approval
OK - nice post but help me understand which part the ethics committee overstepped - only with regards to FOIL?
Looks like all the other stuff is great. I would it is easy to manipulate mixed use travel to ensure you were able to use a state plane. This should tighten up the rules.
Yes, only with regard to FOIL. The commission has no authority to determine what should and shouldn’t be made available under FOIL, to the extent that other agencies are involved. That is, the commission can determine what they, as the commission, will make available under FOIL, but they don’t have the authority to tell the Governor , Legislators, or others in Government what must be made available under FOIL.
ahh, the irony…
OK, hate to have to say it, but, this is a job for a “constituent services” staffer of a NYS Senator or Member of Assembly. You see, “Open Government” is just, kinda, the name. How it really works is that an Albany insider has to intercede on your behalf.
This is an interesting point about the FOIL thing, though, and I think worth biting the bullet and pursuing it through the feudal-style “court intercessor” method. An alternative might be to try to get Blair Horner, now working in the Attorney General’s office on open government issues, to help you get an answer. Good luck, and thanks for doing it.
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