Watchdog Testimony at Senate Ethics Hearing: JCOPE Has to Go

Testimony of Reinvent Albany to Senate Standing Committee
on Ethics and Internal Governance

Good afternoon Senator Biaggi and members of the Senate Ethics and Internal Governance Committee. My name is Rachael Fauss, and I am the Senior Research Analyst for Reinvent Albany. We advocate for open and accountable New York government. Thank you for holding this important, timely hearing and inviting us to testify.

We are here today to make five points:

1. New York State government has a serious and ongoing corruption problem that goes well beyond the misdeeds of former Governor Andrew Cuomo. 
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 discussed further in an additional public hearing on ethics this fall.
4. The legislature must pass legislation to fix JCOPE before constitutional changes take effect, and to better protect state employees from harassment—another form of abuse of power.
5. At a second ethics hearing this fall, the legislature must also examine policy changes to prevent abuses of power like those seen with all of Andrew Cuomo’s scandals, including the use of state resources for personal gain, and influence over state spending without public transparency or legislative and/or comptroller approval. The Comptroller’s and Attorney General’s roles in preventing corruption should also be reviewed.

New York State government has a serious and ongoing corruption problem.
The scandals involving Andrew Cuomo are only the latest in a sad saga of public officials abusing their power, further fueling cynicism and damaging the public’s trust in state government. 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 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. 
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, as well as other government watchdogs and organizations, 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. Consensus is building on a number of principles. Reinvent Albany supports the following:

• JCOPE must be eliminated and replaced by a new, independent ethics commission to be established by constitutional amendment.
• The commission should be smaller in size than JCOPE, even as small as five members, to increase accountability of those making decisions.
• The method of appointment is important for facilitating independent action. Joint appointments, in which the responsibility is shared by two or more parties, could be an improvement on the current direct system. For example, the Governor could appoint two members jointly with the Comptroller and Attorney General, while the majority leaders and minorities leaders of the legislature could each make a joint appointment. The goal is to encourage moderation and reduce the likelihood that a commissioner is beholden to any one appointing authority.
• There should also be an additional, independent joint appointment as a tiebreaker between the legislative and executive joint appointees. One option is to have the four commissioners appointed by the legislative and executive branches appoint a fifth member. Another option is to have the chief judge (perhaps in consultation with the 4 presiding justices) recommend a pool of candidates from which the four commissioners appointed by the legislative and executive branches select the fifth member.
• To avoid situations where an appointment stalls because of political stalemate, the law can spell out consequences for inaction, including that the appointing authority devolves to another authority.
• Certain individuals should continue to be barred from serving on the commission, such as those who hold elective or party office, lobby, or have business before the state.

Outside of the appointment process, we support ensuring that the commission is properly funded to do its job, and that it be required to issue annual reports on its performance which include recommendations for legislative changes to allow for continuous improvement. JCOPE is currently required to issue annual reports but has failed to make significant recommendations for improvements.  This model has been successfully used by the New York City Campaign Finance Board to continually update and improve the city’s campaign finance laws. Additional consideration should be given to how to structure an independent commission via a constitutional amendment in another hearing this fall.

The legislature must pass legislation to fix JCOPE and better protect state employees from harassment.
Amending the constitution to replace JCOPE will take place until 2023 at the earliest, 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) – omnibus JCOPE reform legislation. This bill 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 must be 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) – allows JCOPE to keep complainants informed of investigations, and disclose the status of investigations to the public. JCOPE announced in July that some of the components of this bill are being enacted administratively. This bill has not passed either house.
3. A5825 (Cruz)/S1096 (Liu) – 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) – 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 also a proposal from the Sexual Harassment Working Group.
5. S990 (Hoylman) – removes exemptions for JCOPE and the Legislative Ethics Commission from the Freedom of Information Law (FOIL) and Open Meetings Law (OML). This legislation does not currently have an Assembly sponsor, though has been introduced in both houses in prior sessions.

We also conceptually support policy changes to protect state employees from retaliation, including unlawful release of personnel files. There are a number of bills to address these issues which apply broadly to all employers in New York State, including Senator Biaggi’s new bill about the standard for retaliation, S7292, and Senator Gounardes’s bill prohibiting the release of personnel files, S5870/A7101 (Gonzalez-Rojas), which passed the Senate in June.

New legislation should also be introduced to require, at a minimum, the financial disclosure statements of senior agency officials to be posted online. Currently the District of Columbia posts all financial disclosure statements online for its agency staff members. Ideally, disclosure statements should be filed in electronic form that allows for the information disclosed to be released in open data format. JCOPE discussed this issue at its July 2021 meeting after Reinvent Albany and other watchdogs sent letters asking for the disclosures to be posted online, but stated that it required legislation. Given that JCOPE recently voted to allow proactive disclosure of the status of investigations after previously recommending this be accomplished by legislation, we see no reason why proactive posting online of disclosure statements cannot also be done administratively. However, the legislature can and should pass a law to require this given JCOPE’s inaction.

The legislature must also examine policy change to prevent abuses of power like those seen with Andrew Cuomo’s scandals.
We encourage the Senate to continue its review of abuses of power and need for ethics reforms in another hearing this fall. There is a lot to unpack from the Governor’s scandals, including how to better regulate the use of state resources for personal gain, and the executive’s influence over state spending without public transparency, or legislative or comptroller approval, as seen with the Governor’s unilateral steering of state funds for the Harbor Lights project.

Reforming enforcement bodies is one step toward reforming Albany, but alone may not be enough to prevent abuses. The State Ethics Code as part of the Public Officers Law should also be examined with regard to prohibitions on use of state resources, as well as outside income. Reinvent Albany believes that bans on outside income are far more effective than the the current “disclose and recuse” regime, for example.

Additionally, the State Comptroller and Attorney General are important parts of the state’s anti-corruption safety net. The Comptroller’s role in overseeing state spending has been whittled away by Governor Cuomo through the budget and Executive Orders, and must be restored to prevent waste, fraud and abuse. Legislation sponsored by Senator Reichlin-Melnick and Assemblymember Zebrowski, A7925/S6809, would restore some of this oversight. Additionally, the Attorney General has a Public Integrity Bureau and regional offices, as well as a standing partnership with the Comptroller to investigate the improper use of taxpayer funds.

Thank you again for the opportunity to testify. Please contact Rachael Fauss at rachael [at] reinventalbany.org should you have any questions.