TESTIMONY
Ethan Carrier, General Counsel of the Conflicts of Interest Board (COIB) opens testimony presentation on proposed amendments to the New York City Conflicts of Interest Law
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14 min
Ethan Carrier, General Counsel of the Conflicts of Interest Board (COIB), provides opening remarks on COIB's position regarding proposed amendments to Chapter 68 of the New York City Charter governing conflicts of interest for public servants.
- He clarifies that COIB is an independent city agency separate from the administration.
- He outlines the history and purpose of post-employment communication bans for former public servants in NYC.
- He raises concerns about the process and substance of the proposed amendments, including potential unintended consequences.
- He highlights specific issues around post-employment restrictions for part-time, unpaid policymakers like certain board/commission members.
- He emphasizes the need to balance limiting undue influence with attracting qualified individuals to city service.
Ethan Carrier
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It was just fine with us.
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We just wanna make one little note before we start.
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We're not part of the administration.
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An independent city agency.
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I am Ethan Carrier.
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Good morning.
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Chair wrestler, members of the committee on government operations, state, and federal legislation and I'm the general counsel of the conflicts of interest board.
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Here with me is the board's executive director, Carolyn Lisa Miller.
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We are here on behalf of COIB to offer testimony about intros 76772024.
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Since its creation by the voters of the city of New York in 1989, CUIB has been entrusted to administer the city's conflicts of interest law found in chapter 68 of the city charter to fulfill a critical mission, to preserve the trust placed in public servants of the city, to promote public confidence in government, to promote the integrity of government decision making, and enhance government efficiency.
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COIB supports the council's interest in furthering this mission.
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However, when considering proposed amendments to chapter 68.
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It is critical to maintain the delicate balance of both public interests at play here.
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The need to limit the reality and appearance of undue influence by former public servants on government decision making versus the need to continue to attract highly qualified people to city service.
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By seeking to amend chapter 68 through legislation rather than through a charter revision commission, that balance may not be achieved.
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The interests of the impacted stakeholders will likely not be fully accounted for an unintended sequences could well result.
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First, some brief historical background.
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The 1st post employment communication ban imposed on former public servants in York City was proposed by the 1986 to 88 charter revision commission and approved by the voters in November 1988.
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That restriction found in Charter Section 2604d2 was narrowly tailored and straightforward prohibiting almost every public servant from appearing a defined term in chapter 68 that essentially means communicating for compensation before their former city agency for 1 year.
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For elected officials, deputy mayors, and the heads of 6 named city agencies, the restriction extended to the branch of government served which forced council members, was the city council, and for the other named officials, was the entire executive branch.
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This new prohibition supplemented 2 long standing post employment restrictions.
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Charter Section 2604 D4, which were it's a former public servant from profiting from or communicating with any city agency about a particular matter on which they worked at the city and charter section 2604d5, which prohibits a former public servant from using or disclosing confidential information obtained from city service.
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In essence, Charter Section 2604d2 was added to serve as a 1 year buffer for former public servants communicating with their former city agency, even on matters that they had nothing to do with in their city work and involved no confidential information.
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Charter Section 2604 d 2 remained unchanged for 32 years.
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During that 32 year period COIB provided extensive guidance and education to former public servants about the application of the 1 year post employment communication ban, including 31 advisory opinions and countless pieces of formal and informal advice to individual public servants.
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The first and only changes to the original 1 year communication ban were proposed by the 2019 Charter Revision Commission created by the city council.
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The proposal substantially increased the complexity of the ban by creating a multi tiered restriction.
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The first tier is most public servants still subject to the same 1 year ban.
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The 2nd tier is elected officials and the same small group of level officials identified in the original 1st year post employment ban for a branch wide prohibition.
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They have the same branch wide prohibition now for 2 years instead of 1.
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The 3rd tier is a new group of public servants.
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The heads the head of an agent see that is not a not a border commission.
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The executive director or highest ranking public servant employed by a border and any paid member of a border commission.
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For this 3rd tier, they are now subject to a 2 year ban, but only for their agency served.
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The proposed amendments were approved by the voters in November 2019 and became effective for public servants who left city service in January 2022.
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So some concerns about process.
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These significant changes are only changes to the restrictions to chapter 68 since it was approved by the voters in November 1988, and they took effect just over 2 years ago.
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2 years is too short of a time to judge the impact of those charter amendments, in particular, the impact on that delegate balance between limiting the appear and reality of undue influence on government decision making with the need to attract the best professionals to city service.
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There may come a time when it becomes clear that amendments to the post employment communication ban are necessary, but now is not that time.
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Moreover, if such a time should come, proposals to amend the charter should be considered through a charter revision commission process.
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This is how the prohibitions of chapter 68 have been amended historically and for good reason.
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A charter revision commission engages in a longer deliberative process and seeks through multiple public hearings, the input of a large cross section of stakeholders.
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Here such stakeholders would include the current public servant impacted by a change in their post employment job opportunities.
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Hiring managers at city agencies such as the Department of Housing, Preservation, And Development, who have struggled to retain and replace essential professionals in the current job environment, and those who work in transition teams or appointment offices on the recruitment, appointment, and retention of agency heads, and people to serve on city boards and commissions.
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Finally, if any changes to charter section 2604d2 were to be made now, they should be limited to the referendum on the conduct of elected officials in intros 76.
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To proceed, as now proposed, that is to enact both intros 76 and intros 77 would effectively restrict the conduct of non elected first.
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Then if and when such referendum was on the ballot, there would be no real choice for voters.
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Because what voter would want a ban on elected officials to be less restrictive than other senior government officials.
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Some concerns about substance.
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Chapter 68 itself and the 2019 amendments were the result of an extensive deliberative process with essential input in consideration.
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Any serious change to the regulation of former public servants conduct should be carefully crafted, and as narrow as possible, the balance the admirable purpose of ensuring the integrity of government decision making while not unduly restricting the future professional lives of current public servants.
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Any additional restriction might have serious collateral consequences for the recruitment of qualified people for important positions throughout city government.
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COIV's concerns about the substance of intros 77 reflect only what this agency has identified in the brief time it is considered this legislation.
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We would anticipate that additional substantial concerns would come from the many voices that would emerge in a charter revision commission process.
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So some concerns about part time and unpaid policymakers.
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Chapter 68 imposes lesser restrictions on the conduct of part time public servants with the implicit understanding that their public service must coexist with their primary private employment.
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Intros 77 erases this distinction by adding public servants charged with substantial policy discretion, what we call policymakers to the category of those with a 2 year post employment communication ban.
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Many policymakers are part time public servants, largely those who are members of boards and commissions, and some part time members of boards and commission are unpaid.
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Intro 77 would impose a 1 year post employment, city wide communication ban on part time unpaid policy makers followed by a 2nd year of an agency specific ban.
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The unwarranted unwanted consequences of this proposed change are demonstrable in one such commission, Landmark's preservation.
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Elk commissioners are policy makers who serve part time and unpaid.
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Under Charter Section 30 20, the 11 commissioners of the LPC shall include at least 3 architects.
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1 historian qualified in the field, 1 city planner or landscape and one realtor.
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Under the current law, an architect serving as an LPC commissioner is prohibited from communicating with LPC during their city service and for 1 year after departure.
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Under intros 77, that architect would be prohibited from communicating with LPC during their city service.
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But after departure would have a much more extensive restriction, city wide for 1 year.
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And then LPC for a second year.
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A city wide communication band would effectively preclude an architect for maintaining their practice in the city by HIBITING THEM FROM COMMUNICATING WITH AGENCIES ESSENTIAL TO CONSTRUCTION, SUCH AS THE DEPARTMENT OF BUILDINGS, THE DEPARTMENT OF TRANSPORTATION THE DEPARTMENT OF ENVIRONMENTAL PROTECTION.
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THE CITY NEEDS INDUSTRY PROFESSIONALS TO BE WILLING TO SERVE ON LPC.
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IT IS difficult to imagine any architect, city planner, or realtor willing to make that level a professional sacrifice for an unpaid city position.
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And it is likely that current LPC commissioners, who are active industry professionals, would resign before intro 77 takes effect.
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The same circumstance exists for many others similarly situated city boards and commissions, including many barely paid members of boards and commissions.
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And the recruitment challenges would impact elected officials other than the mayor.
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The Taxi and Limousine Commission and the Board of Correction, for example, both have part time unpaid, board members appointed by the city council and would be subject to a 2 year post employment communication ban, including a city wide ban of the 1st year.
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I'm gonna a little bit about full time policy makers.
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Policy makers is a term defined in board rule section 1 dash 2.
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Our pub these are public servants, does it needed as such by their agencies.
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The designation criteria are imprecise and vary greatly depending on the agency's size, hierarchy, and service structure.
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Whether operating centrally or in district or borough offices.
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Mindful of this, over much of 2023, the board worked to amend board rule and 1 dash 2 to create a more uniform set of policy makers across differently sized and structured city agencies.
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But failed to identify criteria that would not be either over inclusive or under inclusive.
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Without a better option, the board elected to leave the policy her definition as is and engage in more fact finding in audit and auditing instead.
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In its current form, policymakers is a widely overbroad category a 2 year post employment communication ban.
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It likely includes hundreds of public servants without the portfolio or responsibilities that would cause them to have any influence on a an agency other than their own.
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For policy makers at agencies already experiencing difficulties with hiring and retention, approximately 60 at the Department of Housing Preservation development over 100 at the Department of Health And Mental Hygiene, for example.
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There is a strong possibility that there would be resignations before intros 77 took effect and even greater challenges in recruiting good candidates.
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A couple of other overbroad categories While there may be others, COIB has identified 2 other anomalies that would result from intros 77's new multi tiered structure In intros 77 second category, the executive director or highest ranking public servant employed by a border commission would be subject to a 1 year city wide ban followed by a 2nd year agency only ban.
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This would mean that district managers community boards earning between $75,09,000 per year on average would be prohibited from communicating with all of Citi government for 1 year, a result disproportionate to their influence with any city agency other than their own community In intros 77's 3rd category, policymakers, quote, in service of the executive office of the mayor end quote, would be subject to a 2 year city wide ban.
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This would mean that the 19 members of the mayor's advisory committee on a judiciary part time unpaid policy makers would be subject to a 2 year city wide communication ban.
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Members of the mayor's advisory committee on the Sherry, who include law firm partners, arbitrators, and the CEO of the city not for profit, would likely resign before being such subject to such an expansive prohibition.
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And it is hard to imagine what qualified individuals would be willing and able replace them.
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These are just a handful of the examples of the impact of the proposed amendments on the hiring and retention of qualified individuals to serve city government, whether as full time professionals or part time board members.
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We would anticipate that those who work in recruitment and hiring of agency heads and board members would have even more examples.
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COIB stands ready to work to advance as the charter mandates of both the integrity and efficient of city government, and we are available to answer any questions the council members may have.
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Thank you.