Watchdogs Make Case to Court of Appeals that Ethics Commission Is Constitutional

Watchdog groups 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 have submitted a new amicus brief to the New York State Court of Appeals supporting the constitutionality of the appointment process for the New York State Commission on Ethics and Lobbying in Government (COELIG). 

The new brief to the Court of Appeals argues that COELIG’s appointment process is constitutional and earlier decisions by lower court judges were wrong. These lower court decisions were made in response to a 2023 lawsuit by former Governor Andrew Cuomo that challenged COELIG’s order that he return the $5 million he earned for writing a book about his administration’s handling of the COVID-19 pandemic. 

Unfortunately, the Appellate Division decision disregarded the arguments made by both the Attorney General and a December 2023 amicus submitted by these same watchdog groups. 

In their new and previous amicus briefs, the groups say COELIG is an improvement on the previous ethics commission, the Joint Commission on Public Ethics (JCOPE), and that the process for appointing COELIG’s Commissioners – while in need of further improvement – is clearly constitutional. The groups also note that during the public debate over the creation of what became COELIG, they made it clear they preferred a fully independent ethics commission with the authority to effectively address deep-seated ethical problems in state government. 

“In the past 20 years New York State has experienced an epidemic of corruption and serious ethical lapses, which have undermined the public’s confidence in its government… because of both structural defects embedded in the statute and efforts by Governor Cuomo to influence how it operated, JCOPE was simply incapable of providing the necessary oversight to promote public confidence in state government.”

The groups say this was because JCOPE was inherently flawed by structural defects embedded in its authorizing statute, and further undermined by former Governor Andrew Cuomo’s successful efforts to influence how it operated.

COELIG Is Constitutional – and the Governor and Legislature Agreed to Create It

In their amicus, the groups answered the following questions related to the lower courts’ rulings:

1. Was the lower court in error when it held that the power of the Governor to enforce the law is exclusive under the Constitution?
   
   • 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. This overblown view of gubernatorial exclusive authority tainted the analysis of the extent to which the COELIG statute’s appointment provisions intruded on the Governor’s powers.  
   • 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, including the Attorney General and Comptroller.
     
2. Did the lower court correctly analyze the significance of the ability of legislative leaders to appoint members to the Commission?
   
   • No. When the Governor acquiesces in legislation by signing a bill which arguably limits his or her control over a state entity, under Court of Appeals precedent the courts should be reluctant to find the result to be unconstitutional.
   • 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 State Board of Elections, Long Island Power Authority, Gaming Commission, and the State Commission on Prosecutorial Conduct.
     
3. 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.
     
4. 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. 
   • Furthermore, we note that under the statute creating JCOPE, the Governor appointed a minority of JCOPE’s members and could only remove those Commissioners he appointed. 
   • Not only did Governor Cuomo sign the legislation creating JCOPE, but in the decade of its existence its constitutionality was never challenged.
     
5. Did the lower court correctly analyze the fair and reasonable balancing of executive and legislative power that underlies the COELIG structure?
   
   • 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 the people’s 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 is controlling in terms of whether her powers are unconstitutionally limited.
   • The decision of the lower courts based on the mistaken belief that the Governor has the exclusive right to execute the law grants the Governor a form of  immunity that destroys the balance intended by our Constitution.

The groups thank their colleagues who produced the amicus brief and Frederick Schaffer, chair of the NYC Campaign Finance Board and long-time general counsel for CUNY, for filing the amicus brief on their behalf.

Click here to view the full amicus brief.