Professor Eric Lane was quoted in a Spotlight News article.

Ethics laws, charges questioned in Joe Bruno case
Charles Wiff, Spotlight Staff
February 18, 2009

Former Senate Majority Leader Joseph Bruno was indicted in late January on corruption charges, but the laws the federal prosecutors are using against him are not for run-of-the-mill larceny. They are instead much murkier charges that not only highlight the unusual nature of how politicians can run afoul of the law, but how the state keeps an eye on them in the first place.

Bruno’s arrest was the result of a three-year federal investigation. Prosecutors allege that he used his political connections to steer business in the direction of entities he then took money from, and that he also took fees for consulting work when, in fact, he provided none. He allegedly collected $3.2 million between 1993 and 2006 in this manner, and failed to report that income to the state Legislative Ethics Committee, as well.

So what crime do these allegations lead to? Mail fraud. Specifically, “a scheme to artifice and defraud the state of New York and its citizens of the intangible right to honest services,” a charge that prosecutors sometimes use to nail down perpetrators of white collar crime and whose legal value is hardly bulletproof.

“It’s taking a statute and expanding it in a way that creates tremendous powers for prosecutors to go after legislators,” said Eric Lane, a professor at Hofstra Law School in Long Island.

The phrase “to artifice and defraud” was an addendum in an 1872 mail fraud law and is the reason Bruno is being charged with that offense. It’s often used in charging public servants, most notably former Illinois Gov. George Ryan in 2003. Ryan sold government contracts and licenses in return for bribes, and will be incarcerated until 2013 for it.

To some lawyers, the law is written a bit too broadly for comfort; it gives prosecutors the right to make charges on a wide range of things that some might see corrupt, but others might not. Who’s to define what’s “honest,” after all?

“It’s the prosecutors deciding what’s honest service,” said Lane. “One of the big problems is that it doesn’t allow the potential defendant to know what the charges against them are.”

That’s what Bruno is arguing. He’s called the indictment “prosecutorial sleight of hand” and said “they cannot find one example of criminal or illegal intent.”

Prosecutors will try to prove otherwise when the case goes to trial Nov. 2.
Bruno’s case is only another example of what some decry as a long string of ethics failures in the Empire State and further evidence that change to the system itself is long overdue.

“There’s no meaningful public oversight,” said Blair Horner, legislative director of the New York Public Interest Research Group. “The fact that the Legislative Ethics Committee doesn’t have any real power … it results in the fact that the lawmakers don’t take ethics disclosure requirements seriously.”

Horner argues that an independent watchdog is needed to enforce ethics regulations in the legislature and the executive branch.

“You would never leave the oil companies in charge of enforcing environmental law,” he said. “It’s in their own political self interest to fix the system, but they don’t do it out of self interest or sheer stubbornness.”

New York is considered to have some of the poorest ethics law in the nation, leaving it wide open for federal prosecutors to go after statesmen with mail fraud corruption charges and other litigation. Part of the problem is legislators work part-time and are expected to make money outside of their Capitol offices, said Susan Lerner, executive director of Common Cause in New York, a nonprofit lobby organization aimed at advocating for openness in government.

“We have a part-time legislature, and our legislators are permitted to have side income, but these are people who are career politicians … how are they going to generate that income?” she said.

She argued that lawmaking should be a full-time position and disclosure requirements should be bolstered in a reflection of federal standards.

“There’s no reason why New York would not require the same, except that they do not want to put themselves into trouble, and they don’t want to reveal things that they don’t want questioned,” said Lerner. “It can be done in a way that permits you to have a reasonable amount of privacy.”