Ethics Czar's Dual Role

James Cohen in Wall Street Journal, February 10, 2012

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When New York Gov. Andrew Cuomo put Westchester County District Attorney Janet DiFiore in charge of the state's new ethics oversight board in December, he brought a political ally and a tough-minded prosecutor to bear on the capital.
 
Less noted at the time was Ms. DiFiore's other role as the president of the District Attorneys Association of the State of New York, which advocates for county prosecutors and is pushing for passage of a new state law that would send more money to local prosecutors.
 
It is a balancing act that many in Albany are watching closely, particularly lawmakers who fall under Ms. DiFiore's jurisdiction as chairwoman of the Joint Commission on Public Ethics.
 
"It raises the issue of a conflict," said James Cohen, a Fordham University law professor. "She has a certain level of investigative and prosecutorial responsibilities over legislators in terms of ethical issues, and she also wears a separate hat as a spokesperson for a trade association."
 
Ms. DiFiore, a Republican-turned-Democrat, isn't registered as a lobbyist, nor does her group retain lobbyists. In July, when Ms. DiFiore assumed a one-year term as the association's president, she was quoted in the New York Law Journal saying: "I plan to build on the work they have done to ensure that our voice is heard in Albany on all matters of public safety."
 
Spokesmen for the ethics commission and her district attorney's office in Westchester said there is no conflict between her role as the district attorney's association president and enforcing the state's ethics codes for the lawmakers and governors who make policy.
 
Lucian Chalfen, the Westchester district attorney's office spokesman, said Ms. DiFiore wouldn't speak directly to lawmakers about any legislation.
 
"It all goes to the integrity and ability of the individual, and obviously the governor had the utmost confidence. Otherwise, he wouldn't have appointed her," Mr. Chalfen said.
 
Mr. Chalfen, who also serves as the prosecutor association's spokesman, said Ms. DiFiore promotes but doesn't control its agenda. The prosecutor association's leadership rotates among district attorneys. Her term ends in July, after which Manhattan District Attorney Cyrus Vance will take his turn as president.
 
Matt Wing, a spokesman for Mr. Cuomo, said: "Chair DiFiore is a sitting and aggressive district attorney whose impeccable integrity and record will help make the Commission the toughest ethics enforcer in state history."
 
A top priority for the group is a bill proposed by Mr. Cuomo in the executive budget that would overhaul the state's forfeiture statute. Conceived by Mr. Vance's office, the measure would allow prosecutors to seize assets in misdemeanor cases—not just felonies—and pursue a wider range of assets when a defendant jumps bail.
 
It would ease the process for prosecutors who increasingly hand the pursuit of criminal assets to federal authorities with more resources. Under the proposed law, local prosecutors could ask a criminal court judge to order seizure at sentencing, instead of pursuing assets in a separate, costly civil proceeding. The measure would increase the percentage of seized assets distributed to district attorneys—to 35% from 27% after restitution.
 
It is not clear how much more money would go to district attorneys. But legal experts said it could amount to millions of dollars.
 
The measure has polarized the state's legal profession. The New York State Association of Criminal Defense Lawyers called it a "dangerous and burdensome expansion of the criminal court's responsibility." Local prosecutors said they need a better law to make sure that drug dealers and other criminals don't walk away with ill-gotten gains.
 
Some lawmakers said privately they would be uncomfortable with the prospect of Ms. DiFiore advocating for a bill.
 
"The problem with having a chair of the ethics commission who is also lobbying legislators over whom she is sitting as judge and jury is self-evident," said a Democratic lawmaker.
 
But Joseph Lentol, a Democratic assemblyman who is chairman of the Codes Committee, said: "I don't think that she would put herself in a position to lobby on the issue. She must recognize as the chairwoman of the ethics commission, that it would not be a wise thing to do."
 
Stephen Gillers, a professor at the New York University School of Law, said the risk of Ms. DiFiore lobbying Ms. DiFiore lobbying inappropriately is "so remote, I just don't credit the apprehension. Maybe the legislators will worry, but I'd consider the worry excessive."