Constitutionality of New York's ethics panel argued before state's top court

ALBANY, N.Y. — When state officials created New York’s new ethics commission in 2022, they billed it as an independent watchdog to replace an old ethics panel roundly criticized for doing too little to reign in public corruption and self-dealing.

One of the Commission on Ethics and Lobbying in Government's early high-profile actions was to investigate former Gov. Andrew Cuomo over $5 million he had gotten for writing a book about the COVID-19 pandemic.

Years later, the commission is fighting for its own survival after Cuomo’s lawyers persuaded courts that the panel was given unconstitutional enforcement powers. A state lawyer seeking to reverse a lower court ruling argued before New York's top court Tuesday that the commission’s more independent setup is both constitutionally proper and necessary for if to function properly.

The commission has continued to operate as the court case continues. But Rachael Fauss of Reinvent Albany, who listened to arguments with other good-government advocates, said that a ruling against the commission could upend ethics enforcement in New York.

“There would be no watchdog on the beat,” she said. “We’ve had a history of ... corruption scandals in this state, and all the bodies have been ill-equipped to handle them. And if this one — this new body that’s the most independent we’ve had yet — is thrown out, I think it raises a big question about what the Legislature could come up with.”

The commission, known as COELIG, investigates potential ethics and lobbying violations by state officials, employees, lobbyists and their clients. Commission findings involving state lawmakers are referred to the Legislative Ethics Commission for enforcement.

It was created by Gov. Kathy Hochul and lawmakers in 2022 to replace the much-maligned Joint Commission on Public Ethics, or JCOPE. Members of that panel were appointed by the governor and legislative leaders, leading to widespread criticism that commission members had little appetite to hold those officials accountable.

In contrast, COELIG nominations by state officials are reviewed by an independent review committee made up of law school deans. And the governor cannot unilaterally remove commission members.

Cuomo is fighting an attempt by the commission that could force him to forfeit $5 million he got for writing a book about his administration’s efforts during the COVID-19 pandemic. State officials claim Cuomo hadn’t kept a promise not to use any state resources on the book. Cuomo denies those allegations.

A trial court judge ruled in 2023 that the law creating the commission made it too independent from the governor under terms of the state constitution. The judge reasoned that enforcing ethics laws is a power that belongs to the executive branch, yet the governor cannot control ethics commission members, force them to explain their actions or remove them for neglecting their duties.

A mid-level appeals court upheld the judge’s ruling in May.

Cuomo’s attorney, Gregory Dubinsky, told top court judges that the law creating the current ethics panel “imbues this commission with sweeping, mighty law enforcement powers that are quintessential executive powers.”

But lawyers for the state say the commission's setup insulates it from the political branches it watches over.

“We know what happens with an ethics commission when it’s not sufficiently independent. It is unable to do its job, it does not help protect the public trust in government,” said the state's attorney, Dustin Brockner.

Brockner was peppered with sharp questions from judges who signaled doubts about the panel's constitutionality.

Cuomo resigned in August 2021 after the attorney general released the results of an investigation that concluded the then-governor had sexually harassed at least 11 women. Cuomo has denied those allegations. He continues to make public appearances and to speak out on political issues, fueling speculation he might run for New York City mayor or some other office.

Cuomo's exit followed decades of scandals involving New York's elected officials.

Former Gov. Eliot Spitzer resigned in 2008 after being caught up in a prostitution scandal. Ten years later, Attorney General Eric Schneiderman left office after four women he was romantically involved with or had romantic interactions with accused him of physical violence in accounts published by The New Yorker.

Also, past leaders of the state Senate and Assembly have been convicted on corruption charges.

A decision from the top court is expected in the coming months.

The leaders of the ethics commission said in a prepared statement that they were “optimistic that the court will rule in our favor, and confident that if the court, nonetheless, finds any shortcoming in the current statute, it will be quickly rectified by the governor and legislature. ”