State Ethics Commission Is Constitutional Say Civic and Watchdog Groups in Amicus Brief
Commission Appointment Process Is Not Perfect, But Is Lawful
Citizens Union, Committee to Reform the State Constitution, Common Cause NY, New York City Bar Association, New York Public Interest Research Group, Reinvent Albany, and the Sexual Harassment Working Group on Friday, December 15th submitted an amicus brief for consideration to the Third Department, Appellate Division of the NYS Supreme Court in Cuomo v. NYS Commission on Ethics and Lobbying in Government. In sum, the brief underscores the compelling need for an independent statewide ethics commission in New York; identifies the failures of the Joint Commission on Public Ethics (JCOPE); and supports the constitutionality of the Commission on Ethics and Lobbying in Government (COELIG) appointment process.
The Attorney General, representing COELIG, has consented to the groups’ brief being filed, but the plaintiff, Andrew Cuomo, has not. The brief was drafted by Richard J. Davis, a long-time public integrity expert who served as a Watergate prosecutor, Chair of the Mayor’s Commission to Combat Police Corruption, and is currently a member of the NYC Campaign Finance Board, among other roles.
The brief argues that COELIG is constitutional, and thus the lower court decision must be overturned. The lower court ruling was made in response to a lawsuit by former Governor Cuomo challenging COELIG’s determination that he repay the $5 million he received for a book about his administration’s handling of the COVID-19 pandemic.
While unsuccessful in convincing the Governor and the Legislature to create a fully independent commission, the groups believe that COELIG is an improvement on the forerunner JCOPE, and that the process for appointing COELIG’s Commissioners, while in need of further improvement, is constitutional.
New York Has a Serious Corruption Problem, and JCOPE Was a Failure
In their brief, the groups make the policy argument for robust and effective ethics enforcement in New York, stating that for decades, “New York State has experienced an epidemic of corruption and serious ethical lapses involving its elected officials, which have undermined the public’s confidence in its government.” These scandals have involved more than 30 elected officials, ranging from members of the Legislature to governors.
JCOPE was “simply incapable of providing the necessary oversight to promote public confidence in state government” because of both “structural defects embedded in the statute and efforts by Governor Cuomo to influence how it operated.”
Additionally, a key part of COELIG’s responsibilities is to reinforce public confidence in government and to deter corruption. The brief states that the “State Code of Ethics, along with associated financial disclosure requirements and enforcement provisions…are the first line of defense against corruption.”
COELIG is Constitutional – and the Governor and Legislature Agreed to Create It
The groups answered the following questions related to the lower court’s ruling in the brief:
- Was the Lower Court in Error When It Assumed the Power of the Governor Was the Equivalent to the Power of the President?
- Yes. Central to the opinion of the lower court was its assumption that the powers of the Governor were equivalent to the powers of the President of the United States. Judge Thomas Marcelle, however, was wrong.
- The powers of the Governor are very different, with the executive power under the New York Constitution shared with a number of offices that the Governor does not control.
- Did the Lower Court Correctly Analyze the Significance of the Ability of Legislative Leaders to Appoint Members to the Commission?
- No. The policy of creating some political balance in State entities by allowing Legislative leaders to make direct appointments is reflected in a number of statutes, including for the prior ethics commission (JCOPE), the Long Island Power Authority, Gaming Commission, and the State Commission on Prosecutorial Conduct.
- No. The policy of creating some political balance in State entities by allowing Legislative leaders to make direct appointments is reflected in a number of statutes, including for the prior ethics commission (JCOPE), the Long Island Power Authority, Gaming Commission, and the State Commission on Prosecutorial Conduct.
- Did the Lower Court Correctly Analyze the Significance of the Law School Deans Performing a Screening Function?
- No. In analyzing the alleged encroachment on the Governor’s authority, the lower court repeatedly describes the Independent Review Committee (IRC), comprised of the law school deans, as making appointments to the Commission. That is plainly wrong. The IRC serves only a screening function and, although it can find a nominee unqualified after engaging in a comprehensive screening process, it cannot seat anyone on the Commission who is not selected by one of the appointing officials.
- No. In analyzing the alleged encroachment on the Governor’s authority, the lower court repeatedly describes the Independent Review Committee (IRC), comprised of the law school deans, as making appointments to the Commission. That is plainly wrong. The IRC serves only a screening function and, although it can find a nominee unqualified after engaging in a comprehensive screening process, it cannot seat anyone on the Commission who is not selected by one of the appointing officials.
- Did the Lower Court Correctly Analyze the Significance of the Governor’s Inability to Remove Commission Members?
- No. First, in reaching this conclusion, the Court relied solely on federal cases involving the power of the President of the United States.
- In considering the constitutionality of COELIG, it also is important to remember that under the statute creating JCOPE, the Governor did not have the power either to appoint or remove a majority of the members of that Commission.
- The Governor could not remove all, or even a majority of, the members of JCOPE. Not only did Governor Cuomo sign the legislation creating JCOPE, but in the decade of its existence its constitutionality was never challenged.
- Did the Lower Court Correctly Analyze the Significance of Governor Hochul Agreeing to the COELIG Appointment Process and Signing the Legislation?
- No. The creation of COELIG was the product of an agreement between Governor Hochul and the Legislature on how to address a serious problem that was undermining New Yorkers’ confidence in their government.
- Wholly apart from any other argument, pursuant to the decision of the Court of Appeals in Delgado v. State of New York, 39 N.Y.3d 242 (2022), the Governor’s signing of this legislation means that the courts should be reluctant to find that legislation impermissibly limited the governor’s powers.