Watchdog Testimony at Senate Ethics Hearing: JCOPE is Worse Than Useless

Update as of 12:00pm on Monday, July 12, 2021: the hearing has been postponed.

We are here today to make four points:

1. New York State government has a serious and ongoing corruption problem.
2. The Joint Commission on Public Ethics (JCOPE) is worse than useless and must be replaced.
3. The legislature must pass a constitutional amendment replacing JCOPE with an independent agency. This should be considered further in an additional public hearing this fall.
4. The legislature must pass legislation making fixes to JCOPE and better protecting state employees from harassment—another form of abuse of power.

New York State government has a serious and ongoing corruption problem.
New York has had more public officials prosecuted for corruption than any other state. At one point, New York state senators were more likely to lose their seats due to a corruption investigation than to losing an election. Since 2000, nearly 50 public officials have been accused of misdeeds, including three governors, three legislative leaders and the state attorney general. Many more state officials have been investigated by federal authorities.

Barely a year goes by without a massive scandal in Albany. Before the sexual harassment and COVID-19 deception investigations erupted around the Governor, there was the Buffalo Billion bid-rigging scandal in which hundreds of millions of taxpayer dollars were awarded to the Governor’s donors because of bribery and pay-to-play. As a result, four of the Governor’s donors and two of his allies – including his top aide, Joseph Percoco – were found guilty on corruption-related charges.

Corruption and abuse of power are not victimless crimes. Corruption hurts vulnerable New Yorkers the most. When state funds are awarded and laws passed because of pay-to-play and conflicts of interest, the richest and most powerful are rewarded, not the neediest or most deserving.

The Joint Commission on Public Ethics (JCOPE) is worse than useless and must be replaced.
Federal prosecutors and the State Attorney General, not JCOPE, have conducted the fight against corruption in state government. The highly politicized JCOPE often appears to serve to protect those in power. JCOPE has handed out permission slips to the Governor of New York allowing him to receive millions in outside income for his book deals, without the deal receiving approval from JCOPE commissioners. JCOPE has done nothing about the Governor’s alleged use of state staff and resources to write and edit a book that netted him millions of dollars.

JCOPE is built on a quicksand of conflict of interest. Consider the alleged leak of former commissioner Julie Garcia’s vote in January 2019. Because of laws prohibiting disclosure of votes on JCOPE investigations, these votes are supposed to be confidential. However, shortly after the vote took place, Garcia alleges that she received a phone call from Speaker Carl Heastie’s Counsel Howard Vargas saying that the Governor had complained about the votes of the Speaker’s appointees (Garcia was appointed by the Speaker). On June 29, 2021, JCOPE voted not to seek an investigation into the leak — largely because Governor Cuomo’s commissioners all voted against doing so. If Garcia’s account is true, then JCOPE, which is supposed to enforce ethics laws, instead reinforced corruption.

Ethics enforcement agencies are supposed to be independent of the public officials that they police, but JCOPE commissioners are nominated on the basis of their political connections, not their independence. As a result, commissioners vote to protect their own appointers. This has been common in the case of Governor Cuomo and his allies.

Governor Cuomo’s appointees wield so much power because JCOPE’s dysfunctional voting rules enable a minority of commissioners to protect their appointer. Under the rules, an investigation into a statewide official can be blocked without support from two of the Governor’s appointees. Similarly, investigations of legislators cannot take place without two votes from appointees of the legislator’s party. This is supposedly intended to prevent partisan investigations, but instead it prevents any investigations.

JCOPE is so dysfunctional that in 2015, the State Integrity Investigation gave NY’s Ethics Enforcement Agencies an “F” grade, placing the state 38th in the nation. One factor in the failing grade was a 25/100 score on the perceptions that “in practice, the ethics entity/ies operates with independence and is protected from political interference” and “independently initiates investigations and imposes penalties on offenders.”

The legislature must pass a constitutional amendment replacing JCOPE with an independent agency. This should be considered further in an additional public hearing this fall.
JCOPE can only be replaced with a constitutional amendment, which must be passed by the legislature in two consecutive legislative sessions then approved by voters. Throughout the state’s history, the problem with New York ethics enforcement has been that elected officials choose their own police. The question is, how do we establish an ethics enforcement commission that is truly independent from elected officials?

Reinvent Albany is working with other advocates and legal experts like Evan Davis, former counsel to Mario Cuomo, and Ed Murray at the NYC Bar Association to develop an appointment process for a new, independent ethics enforcement agency. This work builds on the important constitutional proposal to replace JCOPE introduced by Senator Liz Krueger and Assemblymember Robert Carroll. Some of the options being considered involve joint appointments from officials, so that one single official does not hold sway over a commissioner, and the development of a publicly released pool of qualified nominees from which elected officials can choose. These ideas and others should be considered further by the Legislature in an additional public hearing held this fall on ethics oversight and reform.

The legislature must pass legislation making fixes to JCOPE and better protecting state employees from harassment—another form of abuse of power.
Amending the constitution to replace JCOPE will take until 2023 at the earliest when voters could first weigh in on a proposal, so in the meantime the legislature can improve JCOPE and better protect state employees from harassment—another form of abuse of power—by passing the following bills:

1. S6964A (Biaggi) – This omnibus legislation passed the Senate this year, but currently has no Assembly sponsor (the individual components are also present in separate legislation sponsored by Assemblymembers Hyndman and Simon). The omnibus bill:
   1. Removes the requirement that in order to initiate investigations, two commissioners voting in favor are from the suspected individual’s political party and/or branch of government.
   2. Removes partisan voting requirements for appointing or removing JCOPE’s executive director, instead requiring a simple majority.
   3. Changes the appointment process so that each legislative leader nominates two commissioners to JCOPE.
2. S6364 (Gounardes)/A7512 (Hyndman) – This bill allows JCOPE to keep complainants informed of investigations, and disclose the status of investigations to the public under certain circumstances. This bill has not passed either house.
3. A5825 (Cruz)/S1096 (Liu) – This bill includes legislative and judicial employees under state civil service law whistleblower and anti-retaliation protections. This is a proposal from the Sexual Harassment Working Group’s 2021 Legislative Agenda. This bill has not passed either house.
4. A2483B (Niou)/S3395A (Gounardes) – This legislation ensures that employees of elected and appointed officials are better able to hold state government accountable and are protected under NYS Human Rights Law’s anti-discrimination and harassment provisions. This bill passed the Senate, and is a proposal from the Sexual Harassment Working Group’s 2021 Legislative Agenda.

Thank you again for the opportunity to testify.