Certain aspects of commentary and public reports, swirling around the public discourse of ethics issues concerning the New York Attorney General’s nine-year prosecution of Maurice R. Greenberg and Howard I. Smith, strike me as very troubling. (See, “Government Still Pursuing Greenberg Case 9 Years Later,” NYLJ, Feb. 18, 2014; ‘Ethics’ Tactic Only Seeks to Intimidate Public Officials, NYLJ, Letter to Editor, Dec. 23, 2013; “Bellacosa Attacks A.G. for Comments in Greenberg Fraud Case,” NYLJ. Dec. 13, 2013.)
Repeatedly over the last few months, some reputable private individuals and certain state employees have propounded, by implicit suggestions and explicit assertions, that pervasive ethical allegations and concerns registered in formal complaints to a public body charged with responsibility for same are: (a) “distractions”; (b) “premature”; (c) “wrongly venued”; (d) “beside the point”; (e) strategically media driven; or (f) all of the above, encapsulated by a variety of rhetorical mischaracterizations, like “harassment” and “usurpation.”
My personal opinion and perplexity stem from a first and overriding principle, as I view the big picture and the entirety of the canvass on which these matters are being painted: Ethics and public integrity of process involving the activities of doubly sworn public officer lawyers, individuals who are entrusted with vast powers, are paramount public policy matters of the first order of importance.
This overriding principle should never be dismissed as a “distraction,” kicked down the road for purposes of delay, or treated with indifference on the strategic hope or chance that it will just go away, be forgotten or lose its urgency with the passage of time. Prompt accountability and transparent redress should be the marching orders, where prima facie justified, within the forums expressly invested with jurisdiction to entertain such matters.
The Public Integrity Reform Act of 2011, signed into law fewer than three years ago on Aug. 15, 2011, created the New York State Joint Commission on Public Ethics (JCOPE). The governor, shortly after signing the act into law, announced that JCOPE would serve as “a strong independent monitor with broad oversight of New York State government.” The commission was created with the specific intent and mandate to regulate and prosecute public official misconduct.
While a Tweed Courthouse-era cash bribe stuffed in figurative or literal black bag was sadly the currency of “public corruption” in New York days of yore, modern-day consternation over the last 50 years stems from abuses of public power and authority that constitute a more insidious and nuanced form of “public corruption.” The latter are deemed more dangerous because they contribute to a breakdown in the very integrity and trust of government process. The Legislature and governor negotiated mightily and lengthily to bring about at long last in 2011 an independent ethics body empowered to deal directly with, and prevent, that kind of breakdown. As a matter of law and common sense, the commission is plainly the proper forum to receive grievances against public officers, and individuals are empowered and encouraged to bring such complaints, at the earliest whiff of possible misconduct.
JCOPE is the body expected, as legislatively intended, to discharge its delegated duties by investigating and acting promptly and transparently concerning formal complaints presented to it.
To even suggest, no less insist as some have opined, that an aggrieved party or concerned citizens should remain silent or indifferent to potentially pervasive and persistent ethical lapses is frankly a preposterous proposition, worthy of the clichéd image of an ostrich burying its head in sand; and, further, unworthy of serious utterance by people who should know better.
After nine years of a media-driven prosecution and the dwindling of the predicate officiously ballyhooed case to a mere shadow of its former self, contrasted to its outsized initial demands for relief, a sharp query cries out for an answer, to wit, can anyone take seriously the comments of those who propose that aggrieved individuals meekly wait out a final resolution of what must seem like their version of Jarndyce v. Jarndyce? Charles Dickens would think not. Indeed, his satirical description, in Bleak House, of unending cases that pass from generation to generation derides the kind of corruption of process that would justify any means to a face-saving or self-defined unending end.
Ethics and integrity of process strike at the heart of the matter of the judicial process. The renowned English author, Graham Greene, invoked that title for one of his literary gems, but the phrase has more pertinent meaning and wrenching application here because these ethical issues involve an alleged course of conduct by doubly sworn public officers serving the State and its People in their capacities as attorneys, charged with the fair administration of justice. The investigation of such conduct should be subordinated neither to political interests nor to justice denied delays. In sum, the public policy of the State has been expressly lodged, as enacted by the Legislature, within the jurisdiction of JCOPE to handle such matters.
I trust these thoughts may contribute to a more faithful discourse and honest reflection concerning the urgency and priority relevancy of the ethics issues formally filed with this public entity under its promulgated rules and regulation.
Joseph W. Bellacosa
The author, a former judge on the New York Court of Appeals, submitted an expert’s affirmation as part of a formal complaint filed with JCOPE in November 2013. The complaint asked JCOPE to investigate whether an assistant attorney general involved in the litigation against Greenberg intentionally made false statements to the court. Bellacosa has no other involvement in the case or professional relationship with any of the parties.