State ethics panel struck down as unconstitutional in Cuomo lawsuit court ruling

Sep. 11—ALBANY — The state's new independent public ethics panel, tasked with investigating and punishing abuses of power among New York's political leadership, has been ruled unconstitutional by a state Supreme Court justice.

In a ruling Monday, Justice Thomas Marcelle ruled that the state Commission on Ethics and Lobbying in Government violates the state's constitution because it was formed without a constitutional amendment, divests power from the Governor and improperly enforces ethics laws that are under the Governor's purview.

It's part of a now two-year-old court battle between former Governor Andrew M. Cuomo and the state's ethics committee, which has attempted to investigate the $5 million book deal Cuomo received to write about his administration's work during the COVID-19 pandemic.

Allegations that Cuomo directed government staff to research and write the book with him on government time led to the last iteration of New York's ethics commission, the Joint Commission on Public Ethics, ordering him to return the money. In August of last year, a different state Supreme Court judge in Albany ruled Cuomo could keep the money. JCOPE had already been disbanded and replaced by then, and the justice left it open for the commission's replacement to again pursue Cuomo, which it did when it ruled to continue JCOPE's cases.

Now, the validity of its replacement has been revoked. Judge Marcelle ruled that the new commission was given enforcement powers improperly, because it was not created by a constitutional amendment. At issue is the fact that the new commission has an independent review commission made up of a panel of law school deans from around New York, who are not public officers and are nominated in a secretive process. That commission can vet and appoint members to the commission.

The commission itself is made up of eleven members, three nominated by the governor, two by the Senate majority leadership and one by the Senate minority leader, two for the Speaker of the Assembly and one for the Assembly minority leader, one from the state Comptroller and one from the Attorney General. In 2022, when the commission was put into place, the review committee was included as a breaker between the nominations and confirmation process — the committee can block a nomination from confirmation.

The judge wrote that for any part of government enforcement to be handed to a group like the commission, a constitutional amendment specifically calling for that is needed. And he seemed critical of the selection of law school deans in particular over the commissions membership.

"If the people should choose to be governed by those who are not politically accountable to them or their governor, who swear no oath of allegiance to them, and who come from a class composed of urban academics and who are not reflective of the cross-section of the people whom they govern, the people may do so," he wrote in his ruling. "But it is for the people to decide and only the people. Here, the Legislature has done by statute what was required to be done by constitutional amendment."

The judge here said the difference between this ethics commission and its predecessors is in the powers given to the new commission compared to those given to JCOPE, or even the long-dead Moreland Commission.

JCOPE was often criticized for its apparent lack of power to enforce any of its rulings, and was seen as a political tool prone to influence by those who had the power to appoint its membership. In the waning days of Cuomo's administration, before he resigned amid a hailstorm of sexual misconduct charges, JCOPE reversed its prior approval of Cuomo's book deal and tried to force him to give the state the $5 million he made from it. A series of legal battles failed, and Gov. Kathleen C. Hochul decided to disband the commission, saying it failed to earn public trust.

Even further back, the Moreland Commission on Public Ethics began to investigate corruption in the state legislature in 2013 and was disbanded by Cuomo. The legislature sued the commission, which was heavily influenced by the Governor, when it tried to issue subpoenas, but the case was dropped when the Governor disbanded the commission in 2014, under allegations that Cuomo had blocked the commission from looking into his office. A subsequent U.S. Attorney's investigation into the Moreland Commissions work resuled in the arrest and conviction of Assembly Speaker Sheldon Silver and state Senate Majority leader Dean G. Skelos on corruption charges.

The new commission is far more removed from political influence than JCOPE, with the Governor having only three appointments to it's 11-member board, and no power to remove members.

The commission also has broader powers to enforce its rulings than JCOPE did.

"A dog that barks is one thing; a dog that bites is quite another," Marcelle wrote. "One can be ignored, the other not so much. Indeed, it is the estimation of other state courts, when an independent ethics panel has the capacity to impose penalties, it crosses and impermissible constitutional line."

A decision like this is likely to face appeal up the chain of state courts, as the state Supreme Court serves as the lowest state-level trial court. The Attorney General's office has been defending the commission against Cuomo's attorneys.