NYS top court rules against Cuomo challenge to ethics panel's constitutionality

ALBANY — The state’s highest court on Tuesday ruled against former Gov. Andrew M. Cuomo, who had challenged the constitutionality of the state ethics commission, which said he couldn’t keep $5 million he was contracted to receive for writing a book on his leadership during the COVID-19 pandemic.

The decision supports the authority of the Commission on Ethics and Lobbying, which had ordered Cuomo to forfeit royalties for the book.

Cuomo had argued to the Court of Appeals that the ethics commission, partly led by legislative appointees, had no authority to take action against a governor because it would violate the state constitution’s separation of powers.

The 4-3 decision concluded that "the governor does not have unfettered powers."

"Trust in government is essential to democracy because its erosion leads to apathy, disaffection, and the breakdown of civic institutions," said the majority decision, written by Judge Jenny Rivera, who was appointed to the court by Cuomo. "Indeed, government cannot function if the public perceives that those entrusted with public power are unaccountable when they misuse their authority for private gain."

A Cuomo spokesman said the split decision is tainted by politics after two lower levels unanimously agreed the ethics panel wasn't constitutional.

"We intend to file for reconsideration — as is our right — but it is disturbing that any judge of New York's highest court would countenance flagrant violations of the constitution when it conflicts with what is most convenient to the political class," said spokesman Rich Azzopardi.

The commission issued a statement Tuesday, but didn’t say if or how it could require Cuomo to part with royalties for the book.

"As it has done continuously from its inception, the Commission will administer and enforce the state’s ethics and lobbying laws, deliberately, fairly, and with zeal, pursuing its mission to restore New Yorkers’ faith in state government," said the commission’s executive director, Sanford N. Berland, in a written statement.

The commission was created in 2022, after Cuomo had resigned from office over allegations of sexual harassment. The new commission, which was created by the State Legislature and Gov. Kathy Hochul, Cuomo’s former lieutenant governor, was formed after years of criticism that its predecessor wasn’t independent from Cuomo.

In September, a lower court judge ruled that enforcement of ethics law is a power of the executive branch, which set up the high court’s review.

Tuesday’s narrow decision noted that the issue was particularly difficult to decide and relied on laws and court precedents dating to the 1770s.

"We emphasize that the [ethics] Act goes very near the line of what is constitutionally permissible without crossing it," the decision stated. "We therefore conclude that the Act is not unconstitutional in every conceivable application."

The decision is expected to be a landmark ruling that could empower corruption investigations in state government for years to come, said Vincent Bonventre, a distinguished professor of law at Albany Law School.

"Most landmark decisions are not strictly legalistic decisions," Bonventre said in an interview. "They are about what makes sense, what works, and what’s right for a free society."

The decision provides protection for the commission, which was created as an independent body, to investigate and sanction high officials, including governors, without being removed by those officials, Bonventre said. A lack of independence by ethics commissioners from the elected officials who appointed them has been a criticism of ethics boards for decades in Albany.

"To allow them to remove [ethics commissioners] really dilutes their independence and that’s what the Court of Appeals dealt with in this case," Bonventre said.

Attorney General Letitia James, whose office defended the ethics commission, said the decision is critically important.

"The public deserves to have faith in their elected officials, and that requires a strong, independent, ethics watchdog," James said.

The court decision also was supported by good-government advocates in Albany.

"While ethics oversight is always a work in progress, the structure of the current law has been given a clean bill of health by the state’s highest court and can now go about its business without a cloud hanging over its work," said Blair Horner, senior policy adviser of the New York Public Interest Research Group.

The decision doesn’t automatically mean Cuomo must surrender any pay for the book, but Cuomo’s attorneys would have to seek other ways to avoid allowing the commission to confiscate the proceeds for "American Crisis: Leadership Lessons from the COVID-19 Pandemic," Bonventre said.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.