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In win for ex-Gov. Cuomo, ethics panel ruled unconstitutional
By
Brigid Bergin
Published Sep 11, 2023
Modified Sep 11, 2023
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Photo by ANGELA WEISS/AFP via Getty Images
By
Brigid Bergin
Published Sep 11, 2023
Modified Sep 11, 2023
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Andrew Cuomo 1, new state ethics board 0.
After a drawn-out two year battle, a state judge in Albany has ruled the state’s new ethics board is unconstitutional.
The ruling issued Monday by Supreme Court Justice Thomas Marcelle struck down the agency’s enforcement ability, bolstering odds that former Gov. Andrew Cuomo may be able to keep a $5 million payout for his pandemic-era memoir, at least for now.
“The government belongs to the people of the State of New York. They established it and only they can alter it,” Marcelle wrote in his ruling.
Marcelle wrote that the new law creating the Commission on Ethics and Lobbying in Government, shifted power that should belong to the executive branch to a group of unelected law school deans who are not accountable to voters, a change that would require a constitutional amendment, and not just a change in state statute.
The decision marks a significant win for Cuomo who argued against the constitutionality of the recently formed agency, which investigated the payment for his 2020 book, "American Crisis: Leadership Lessons from the COVID-19 Pandemic.” A previous ethics board had already found Cuomo misused state resources to write the book, although the former governor’s representatives say people volunteered their time.
It also represents a defeat for state Attorney General Letitia James, whose office was representing the ethics body in court and sought a decision that would uphold the law as written. Cuomo has often accused James and her office of creating the political pressure that led to his decision to resign from office after her office’s multiple investigations into nursing home deaths related to state COVID-19 policies and allegations of sexual misconduct.
A spokesperson for Gov. Kathy Hochul defended the law creating the ethics panel and said the state would appeal the ruling.
At the heart of the case is Executive Law 94, which established the new ethics panel known as COELIG last year. That panel replaced a previous watchdog entity known as the Joint Commission on Public Ethics (JCOPE), which was long criticized for being too close to Cuomo.
Under the new law, COELIG provides oversight of the state’s executive and legislative branches. Its 11 members are nominated by the governor, attorney general, comptroller and state legislative leaders. However, the individuals must also be approved by a 15-member panel comprised of the deans of various New York law schools.
In the ruling, Marcelle took aim at how COELIG members are appointed, finding that it “breaks the chain between those who govern and the governed. Simply put, the Legislature may not transfer to a private party power that the people gave to the government.”
Avi Small, a spokesperson for Hochul, said in an email that the decision “undermines the independent ethics commission created by Gov. Hochul and we will work with the Commission to support an appeal”.
“Taking office in the midst of scandal and a crisis in State government, Gov. Hochul worked with the Legislature to craft a new, truly independent ethics body that could begin to restore New Yorkers' faith in their public officials,” Small said.
In a joint statement, COELIG Chair Frederick Davie and Executive Director Sanford Berland said they are "reviewing all options, including, if appropriate, interim legislation."
"The Commission intends to move forward, deliberately and with zeal, to fulfill its mission to restore New Yorkers’ faith in government, even as it pursues relief from today’s ruling through the appellate and legislative processes," said the joint statement.
A spokesperson for Cuomo praised the ruling, lashing out at the former governor’s perceived critics.
“As we’ve said all along, this was nothing more than an attack by those who abused their government positions unethically and — as the judge ruled today — unconstitutionally for political purposes,” Cuomo spokesperson Rich Azzopardi said in an email.
“Those in Albany who created this farce of a commission may not care about — or know — the law...every time someone charged with upholding the law looks at the facts we prevail."
A spokesperson for the state attorney general has not yet responded to a request for comment.
Government watchdogs say the decision should be viewed less through a lens of what it means for the former governor, and more about what it could mean for the future of ethics oversight and enforcement for the state.
“I think the heart of the matter here is that this is a lower court decision,” said Rachael Fauss, senior policy adviser with Reinvent Albany.
She said the appeals process will show that the commission is constitutional and that the lower court decision is fundamentally flawed. In terms of what it all means for Cuomo, she said it was “a distraction.”
Fauss said COELIG performs crucial functions far beyond this investigation. It receives lobbying filings and reviews financial disclosure forms from elected officials.
“The fate of one elected official is a very small part of what they do,” said Fauss.
This story was updated to include remarks from the head and executive director of the state's Commission on Ethics and Lobbying in Government.
Tagged
new york state
andrew cuomo
new york city
Kathy Hochul
Politics
Brigid Bergin
Brigid Bergin is an award-winning senior reporter on the People and Power desk. She is fiercely committed to telling stories that help people engage and support democracy. In 2022, she hosted a live, ten-week call-in politics show ahead of the midterm elections called The People's Guide to Power. Brigid's reporting in 2017 included some of the first coverage of a political newcomer now known as AOC. In 2016, she broke the news of a voter purge in Brooklyn just days before New York’s presidential primary, triggering city, state and federal investigations. Brigid also guest hosts The Brian Lehrer Show and All Of It. She graduated from the University at Albany and the CUNY Newmark School of Journalism. Got a tip? Email [email protected] or Signal 917-723-4719.
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