Advisory Opinion 08-1, dated March 25, 2008, is a 36-page, barely coherent document wherein the PIC outlines its interpretation of provisions of the New York State Public Officers Law and Legislative Law that deal with gifts lobbyists and others with business before public officials, can give to public officials.
I take note of the fact that the computer file of Advisory Opinion 08-1 lacks a basic amenity common to most PDF files these days: character recognition. This means that you can't copy/paste from it easily, nor can you easily electronically search the document for specific words. I also note that as the document proceeds the pages tilt more and more, giving the general impression of laziness and lack of care in their work product.
At any rate....Per the Spitzer ethics law that PIC enforces, lobbyists are allowed to give legislators (and other officials before whom they have business) gifts “of a nominal value,” in acknowledgment of the fact that relationships and friendships build up over time. (Before the Spitzer ethics reform the standard was gifts of $75.) Food, drink, refreshments, etc., all count as gifts under the law. The PIC claims that the “nominal value” language occurs in the laws of other States, and the rules of the U.S. House of Representatives. I am not about to run around confirming this claim, so I'll just accept it for now.
The PIC's definition of “nominal value” begins on page 12, and continues on through page 16. Their interpretation is noticeably stricter than those of the other entities whose interpretations of similar or identical language they cite. Those other entities use as standards such tangible items as t-shirts, baseball caps, etc. But, that's just not ethical enough for New York State.
What follows is an exact quote from PIC Advisory Opinion 08-1. I had to type this by hand, rather than copy/paste, because, as I mentioned above, the PIC has neglected to include character recognition in their PDF document. So typos are a possibility, but I have proofread it a few times.
Given the legislative purpose to remove improper influences from State government, the Commission adopts a narrow construction of the term “nominal value.” We do not define “nominal” with a dollar limit. It is our view that nominal value is considered such a small amount that acceptance of an item of nominal value could not be reasonably interpreted or construed as attempting to influence a State employee or public official. Therefore, items of insignificant value as, for example, a regular cup of coffee or a soft drink, are considered nominal. Nominal value would not include a meal nor would it include an alcoholic beverage. However, even items of nominal value can be improper depending on the context. (Page 16)
Ah, yes, that clears it up. “Regular” cups of coffee, and maybe a little soda, are proper except of course when they are not.
Also note this article authored by Elizabeth Benjamin for the Daily News's Daily Politics blog which contains the following quote:
And by "ordinary," the commission means "not a Starbucks mocha latte," according to PIC spokesman Walter Ayres.
(The actual word in the PIC document is “normal” but for some reason in that article they use “ordinary.")
The Mocha Protocol. A key facet of New York State's ethic reform law now seems to rest on it.
The Mocha Protocol is a good title for a Robert Ludlum novel, but a rather bad standard for ethics. It potentially kills the reception business in Albany, which hurts local caterers. It also destroys one of the last physical places wherein politicians from opposing parties, regions, or points of view could get together and see one another as something other than mortal enemies. Note Political Scientist Alan Rosenthal's article “Ethics and Lobbying,” originally published in a 1996 issue of an American Political Science Association—Legislative Studies Section newsletter called Extension of Remarks, and recently republished in the newletter's January 2006 issue, located here.
Quoted in its entirety, here is Rosenthal's frightening conclusion:
The irony of changing from an inside to an outside game is that instead of the ethical issues being solved, they have only changed shape and size.
Despite the sense of obligation inside lobbying may engender, it is overall an honest game. It has to be. Lobbyists must hew to the straight and narrow. They cannot afford to jeopardize their credibility, so they communicate truthfully to legislators. It they deceive, mislead, or perhaps omit, they risk making enemies. Lobbyists are in the business for the long run, so no single issue is worth mortgaging the future. Moreover, the work spreads quickly in a legislature; wronging one member can tarnish a lobbyist’s reputation with all members.
The objective of the outside game, in which constituencies and publics are mobilized, is to exert pressure on legislators. This can be done by having citizens contact their representatives or making it appear to representatives that citizens are concerned. Managers of such an enterprise are in the business of shaping public opinion and/or the perception legislators have of it. These issue campaigns, like candidate campaigns, can be highly manipulative. The political strategists, pollsters, and media consultants who run them need not worry about their reputations in a particular legislature. Their reputations derive from the victories they achieve, whatever the techniques they use. It is not unusual for these campaigns to deal in the slanted, negative, and misleading.
The integrity of the information the public and legislators receive as a result of grass roots, public relations, and advertising campaigns is considerably less than that which legislators receive as a result of lobbying based on relationships. Ethics laws have dealt with some old problems, but have given rise to some new ones. (Pages 11-12. I note that, because this document, unlike Opinion 08-1 of the PIC, has character recognition, and thus I was able to copy and paste this extended quote rather than retype it. In other words, any typos can be blamed on Rosenthal and whatever secretary at the American Political Science Association who typed up this issue, not on me.)
In that same issue of Extension of Remarks, Political Scientist Ronald Shaiko has an article on lobbying in Washington, DC called “Changing of Washington Culture: Lobby Disclosure and the Gift Ban.” He notes the following:
What is truly ironic about the gift ban efforts in the House and Senate is that these attempts to limit the role of money in the political process through the acceptance of gifts and travel from lobbyists and other interested parties have made money more important in the political process. Now the only time a lobbyist may have access to a Member or Senator outside of the confines of a congressional office or in the hall on the way to a vote is at a fundraising event. (Page 5.)
I can't know for sure, of course, but my impression is that Rosenthal and Shaiko are more skeptical of any kind of ethics reform or lobbying reform than I am. This would almost definitely be true of Alan Rosenthal, who based on other things he's written is nothing if not a fan of old-school cloak room politics. For example, one of my favorite solutions to ethics, full disclosure of pretty much everything, is viewed by Rosenthal with what I'd call skepticism, and he seems to suggest that disclosure is ultimately as destructive to legislative cultures as are gift bans.
But, that's not me. I just want the PIC to use a standard that's marginally less asinine than a “regular” cup of coffee, but “not a Starbucks mocha latte.”
Many convenience stores sell their coffee for 89 cents a cup or cheaper. Starbucks, by contrast, will sell you a “regular” cup of coffee for $3 or more, depending on size. Maybe they'll use a cup of coffee at the Empire State Plaza, or at the capital. What size? Does “regular” equate to small, medium, large, or “super.” From which location? How do they calculate the value of a reception? Do they take the total cost of the reception, divide it by the approximate number of attendees (and did they know for sure or could they have been off by a few), and then apply The Mocha Protocol?
Ethics reform is a risk. It is a risk that may be worth undertaking, especially given New York's rather checkered political history, but I for one would rather that risk be undertaken on the basis of a standard that makes sense. To undertake this risk on the basis of a standard like the PIC's just makes New York State look ridiculous, and adds to the increasing, and increasingly justified, feeling that the Empire State's best days are well behind it.
No State that uses a cup of coffee, excuse me, a “regular” cup of coffee (one has to capture that important nuance), as an ethical standard is anything other than a joke, and a bad one at that. I can imagine a Saturday Night Live sketch, broadcast at 12:45, featuring an exaggeratedly blind Governor David Paterson being dragged off by the State Police, saying "where are you taking me guys, New Jersey?", with Eliot Spitzer stuffing money in the PIC members' pockets and picking up hookers.
New York State when it comes to ethics seems to have become an either/or state. Either its politicians are blatantly and ridiculously corrupt, or they have to worry about someone buying them a cup of coffee.
There are, for example, doubts about the residency of one of Governor Paterson's key aides. OK, so doubtful residency isn't “blatantly and ridiculously corrupt,” to quote myself. And “doubtful” isn't the same thing as “true” or “proven.” But, if true the allegation is definitely worse than someone being bought a mocha.
Though it dates back to March 25, 2008, PIC Advisory Opinion 08-1 has been in the news lately. As this article on the Daily News's political blog, the Daily Politics, linked to earlier, notes, the first-ever enforcement actions for violation of The Mocha Protocol have begun. Also note this PIC Press Release, and the following quote from it:
Barry Ginsberg, Acting Executive Director of the Commission, said, “We are seeking the names of all public officials and State officers and employees who may have attended these events and will take appropriate further action.”
So not only has the PIC already nailed some people (specifically some lobbyists) for violating The Mocha Protocol, they are out looking for more people, specifically the officials who were entertained. Though it may seem like a joke, The Mocha Protocol is actually no joke. It is having real life consequences.
The timing of this matter is of particular interest. The PIC is fighting for its very existence. It has its own ethical problems. Note this article from NYPOLITICS.com, this article from NYTIMES.com, and this article from the the Daily Politics. All of these articles refer to how a now-former high official at the PIC may have improperly used his position to help Eliot Spitzer.
If nothing else, the first-ever application of The Mocha Protocol has successfully diverted press attention away from the PIC's own ethical problems, at least temporarily. How long that will last is anyone's guess.
I have a suggestion for the State Convenience Stores' Association: Greatly increase the prices of regular cups of coffee in your member stores to, say, $30 for 15 ounces. Sure, you'll lose some business, but your fellow interest groups can compensate you for the lost business, because so far as I know there's no law on interest groups giving money to each other (yet). The average price of a regular cup of coffee throughout New York state will increase astronomically, and eventually even the most ethical legislators can enjoy their triple mochas (don't skimp on the whipped cream please) while their less ethical colleagues will continue to enjoy “under the table” perks the way they always have, and always will, regardless of ethics laws.
The Mocha Protocol is a fake ethics standard, that will do nothing but hurt local catering businesses and ensure that legislators even more resent the fact that they gave up the chance for six-figure consulting jobs for this, and that lower end and middle end legislative staffers resent even more the fact that the staffers above them are over-paid while they are under-paid. Legislators who are not lawyers, or not otherwise independently wealthy, will further resent their wealthier colleagues. Because, somehow, I have the feeling that, say Senate Secretary Angelo Aponte and Assembly Speaker Sheldon Silver will still be able to afford to pay their own way everyplace. The perpetually-whining Senator Eric Adams, however, may not.
As if the existence of The Mocha Protocol weren't enough, it has a potential loophole, just to make things more interesting. PIC Advisory Opinion 08-1 pages 23 through 25 describe an exemption for “widely attended events.” Citing an opinion of one of its predecessor agencies (I'm not sure which one) the PIC defines a widely attended event as one “open to members from throughout a given industry or profession, or if those in attendance represent a range of persons interested in a given matter” (page 23). I'm not sure if this applies to the Legislature or not, but given that many of the groups that come to Albany to lobby helpfully coincide their lobbying efforts and annual conventions, this is a potentially big loophole. A loophole in a standard that shouldn't exist to begin with.
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