NYSBA WINTER 2011 | Vol. 13 | No. 2 Government, Law and Policy Journal A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School TThehe OOversightversight FFunction:unction: GGuardinguarding tthehe PPublicublic IInterestnterest • IInsurancensurance RRegulationegulation • IInspectorsnspectors GGeneraleneral iinn NNewew YYorkork MMunicipalitiesunicipalities • NNewew YYorkork CCityity DDepartmentepartment ooff IInvestigationnvestigation • EEthicsthics LLawsaws iinn NNewew YYorkork SStatetate • AAnn IInternationalnternational TTraderade ““Watchdog”Watchdog” • PPrivaterivate IIncentivesncentives • FFalsealse CClaimslaims AActscts • GGovernmentovernment IIntegrityntegrity • CCorruptionorruption PPreventionrevention aandnd GGovernmentovernment EEfficiencyfficiency NEW YORK STATE BAR ASSOCIATION The Committee on Attorneys in Public Service 2012 Annual Meeting Educational Programs and Awards for Excellence in Public Service Tuesday, January 24, 2012 Hilton New York Sutton Parlor North, 2nd fl oor, 1335 Avenue of the Americas (53rd-54th Streets) New York, NY Supreme Court Update (9:00 a.m. – 12:15 p.m.) This session will look back at the 2010-2011 term, the Justices, highlight the biggest decisions of the term and look ahead to the upcoming 2011-2012 term. Speakers: William D. Araiza, Professor of Law, Brooklyn Law School Jason Mazzone, Gerald Baylin Professor of Law, Brooklyn Law School New York Ethics Reform – Version 2.0 (2:00 p.m. – 5:15 p.m.) Moderator: Professor Patricia E. Salkin Introductions: 2:00 - 2:05 PM Panel # 1 — 2:05 - 2:55 PM Public Integrity Reform Act of 2011: What Every Government Lawyer and Lobbyist Should Know Speakers: Mark F. Glaser, Esq., Greenberg Traurig Michael C. Fallon, Esq., Hinman Straub Lisa P. Reid, Exec. Dir., NYS Legislative Ethics Break: 2:55 - 3:10 PM Panel # 2 — 3:10 - 4:00 PM Investigation of Wrongdoing by Government Employees and Theft of Honest Services post Skilling — Sorting out Jurisdiction, Authority and What Actions of Employees are Covered Speakers: Karl J. Sleight, Esq. Harris Beach Joseph A. Spinelli, Navigant Consulting Hon. Richard A. Dollinger, NYS Court of Claims Panel # 3 — 4:00 - 5:15 PM Rules of Professional Conduct and the Government Lawyer Speakers: Richard Rifkin, Special Counsel, New York State Bar Association Lisa F. Grumet, Esq., NYC Department of Law Prof. Bruce A. Green, Fordham Law School Kathleen Mulligan Baxter, General Counsel, New York State Bar Association 2012 Awards for Excellence in Public Service Reception (5:30 p.m. - 7:00 p.m.) 2012 Honorees: Stephen G. Brooks, Bennett M. Liebman, Hon. Marian W. Payson and Carol L. Van Scoyoc Committee on Attorneys in Public Service: Peter S. Loomis, Chair Annual Meeting Planning Committee: Catherine Christian, Anne Murphy and Patricia E. Salkin Awards Committee Chairs: Donna M. Giliberto and Theresa L. Egan This Award Reception is a FREE event, and is open to all NYSBA members, friends and colleagues RSVP by January 20, 2012 to: [email protected] or 518-487-5571. WINTER 2011 | VOL. 13 | NO. 2 Government, Law and Policy Journal Contents Board of Editors 2 Message from the Chair J. Stephen Casscles Peter S. Loomis Lisa F. Grumet 3 Editor’s Foreword James F. Horan Rose Mary K. Bailly Barbara F. Smith 4 Guest Editor’s Foreword Patricia K. Wood Daniel L. Feldman Staff Liaison I. Case Study—Insurance Regulation Albany Law School 6 A Failure of Oversight in Need of Rescue: Insurance Regulation Editorial Board J. Robert Hunter Rose Mary K. Bailly 16 Insurance Consumer Protection Efforts by Government Regulators: Editor-in-Chief Evolving Under Scrutiny Patricia E. Salkin Amy Bach and Peter Kochenburger Director, Government Law Center 22 New York’s New Department of Financial Services: Managing Potential Confl icts Within the New Unifi ed Regulatory Regime Vincent M. Bonventre Mark Peters and Mohana Terry Founding Editor-in-Chief Student Editors II. City, State, Federal, International Daniel Levin 27 Inspectors General in Small and Mid-Sized New York Municipalities: Executive Editor A Practical Approach Philip A. Zisman Alaina Bergerstock Oriana Carravetta 33 The New York City Department of Investigation: A Century of Oversight Stefan Eilts Rose Gill Hearn Jennifer Jack 39 Assessing a Century of Ethics Laws in New York State Kevin Rautenstrauch Blair Horner and Russ Haven Stephanie Sciandra 48 Inspectors General—Evaluating Independence and Increasing Capacity Adam Staier Betty B. Vega Catherine Van Auken Senior Editors 55 An International Trade “Watchdog”: Monitoring Terrorists and Diamonds Cecilia L. Gardner Editorial Offi ce GLP Journal III. Private Incentives Government Law Center 59 On the Origins and Operations of the Independent Private Sector Inspector Albany Law School General Program 80 New Scotland Avenue Ronald Goldstock Albany, NY 12208 518.445.2329 64 False Claims Acts, City, State, and Federal: Enlisting Citizens to Protect the Fisc Gene De Santis and Reannon Froehlich, with editorial assistance by Daniel Levin Send Address Changes to: Records Department New York State Bar Assoc. IV. Refuting the Cynics One Elk Street 68 The Joint Pursuit of Government Integrity and High Performance Albany, New York 12207 Frank Anechiarico and Dennis C. Smith 518.463.3200 78 Doing Well by Doing Good: Can Corruption Prevention [email protected] and Government Effi ciency Strategies Help Turn Around Declining Cities? David R. Eichenthal The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed or otherwise engaged in public service. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the editors, the Government Law Center, or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quota- tions. Contact the editor-in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2011 by the New York State Bar Association. ISSN 1530-3942 (print) ISSN 1933-8414 (online). The Journal is published twice a year. Message from the Chair By Peter S. Loomis Fall has begun as I Brooks, Bennett M. Liebman, Hon. Marian W. Payson, and write this message, and the Carol L. Van Scoyoc. Committee on Attorneys in Public Service (CAPS) has Also very active this fall is our Annual Meeting Sub- begun what is expected to committee, chaired by Catherine Christian and Anne Mur- be a busy year. We have a phy. The morning program in January will continue our number of new members tradition of an annual Supreme Court review, which has representing a wide variety always been well received, and we will be honored once of public sector interests, again to have with us two distinguished professors from and I am excited about the Brooklyn Law School, Jason Mazzone and William Araiza. months ahead. Fall is tradi- Our afternoon programs have always tackled issues of tionally a particularly busy current interest to public sector attorneys, and 2012 will time for the Committee, as be no exception, as we look at the current state of Ethics we plan our program for the Reform in New York. Our impressive list of speakers con- Association’s Annual Meeting in January and select our tinues to grow at this writing, and includes such experts honorees for the Association’s Award for Excellence in as Mark Glaser, Karl Sleight, Judge Richard Dollinger and Public Service. Bruce Green. More are soon to follow. The afternoon pro- gram will be moderated by Professor Patty Salkin of Al- Our Awards and Citations Subcommittee, chaired bany Law School who, as our readers will recall, is a past this year by Donna Giliberto and Terri Egan, reviewed the CAPS chair and was a co-chair of past NYSBA president record-setting 24 nominations the Committee received for Steve Younger’s Special Task Force on Government Ethics. the annual Award for Excellence in Public Service, and the full Committee chose our honorees in mid-October. The topics of Ethics is particularly relevant for this This will be the thirteenth year that we have singled out year’s program in light of the Public Integrity Reform Act individuals and, in a few cases, offi ces or organizations, of 2011 and also because this Winter 2011 issue of the Gov- as representing the very best in public service in New ernment, Law and Policy Journal is dedicated to the over- York. Our award criteria state that “Individuals must sight function and issues involving guarding the public epitomize a commitment to the highest and noblest call- interest. With Dan Feldman serving as Guest Editor, the ing afforded by the legal profession: to preserve and Journal contains 12 articles addressing a variety of topical protect the public,” and that “…their efforts must dem- issues, and I sincerely thank Dan and our contributing au- onstrate a commitment to service, honor and integrity.” thors for producing another quality product. Thanks as al- Some of our past honorees have been well known to the ways also go to Editor Rose Mary Bailly and the students public and others have been known for their dedication at Albany Law School who edited the articles. As I have to excellence perhaps only by their coworkers or those said in prior Messages, production of the Journal is one who benefi tted from their work, but each honoree chosen of CAPS’ proudest achievements, and these issues could by CAPS has been recognized because of an extraordi- never be published without our ongoing partnership with nary level of service to the public good. Our 2012 honor- the Government Law Center at Albany Law School, led by ees for 2012, to be honored at the annual Bar Association Patty Salkin. Kudos to all!! meeting in January in New York City, are Stephen G. NNYSBAYSBA COOMMITTEEMMITTEE OONN ATTTORNEYSTORNEYS IINN PUUBLICBLIC SEERVICERVICE VVisitisit uuss oonn tthehe WWebeb aatt WWWW.NYSBA.ORG/CAPSWW.NYSBA.ORG/CAPS 2 NYSBA Government, Law and Policy Journal | Winter 2011 | Vol.