Testimony: Restoring Public Trust Requires Bigger, Bolder NY Ethics Commission

Good afternoon, members and staff of the Commission on Ethics and Lobbying in Government (COELIG). My name is Rachael Fauss, the Senior Policy Advisor for Reinvent Albany. We advocate for a more transparent and accountable New York government.

First, thank you for holding this hearing, as required by law. We support many of the administrative changes made since your last hearing to improve ethics and lobbying oversight, and appreciate you sharing your draft legislative agenda for comment. 

Unfortunately, the progress made by COELIG has been undermined by former Governor Cuomo’s lawsuit challenging its constitutionality. Ironically, we opposed COELIG’s initial creation because we believed it was not independent enough to reign in unethical governors. That said, we are firmly convinced COELIG is constitutional and filed an amicus brief to that effect with other watchdogs to the Court of Appeals.

We believe the lower court’s position that the NYS constitution requires oversight bodies be controlled by the governor is dangerous, illogical, and ahistorical. Essentially, the lower court interprets the state constitution as creating a governor who is an elected monarch who can break laws with impunity, checked only by the unlikely threat of impeachment – a power that has only been used once in over two centuries. 

COELIG’s legislative agenda includes a number of good proposals that would improve ethics and lobbying oversight. However, we once again urge you to aim much higher. Public trust and confidence in New York government has been badly eroded by an endless series of ethics, sexual harassment, and corruption scandals. COELIG has to be bold or it will fail to restore public trust.  

Reinvent Albany’s testimony makes recommendations in three areas:

• Regulatory and administrative changes, including actions to date and the need for transparency of the content of informal advisory opinions rendered to state officials;
• Legislative changes to improve the transparency of lobbying and financial disclosures, strengthen the code of ethics, amend the Open Meetings Law, and establish an independent budget for COELIG; and  
• Increasing the Commission’s budget, and conducting an independent review of IT and staffing needs.

Regulatory/Administrative Changes

Since the last hearing, COELIG has made a number of administrative changes we recommended in our March 2023 testimony, including:

• Publishing open data for lobbying reports. COELIG’s predecessor JCOPE had stopped publishing lobbying data in an open data format.
• Requiring commissioners to approve guidances for statewide electeds, agencies, or authority heads. 
• Barring communication with appointing authorities on commission matters, and requiring communications from appointing authorities be shared with all COELIG members. 

We also support the Commission’s intention to publish a formal advisory opinion on how COELIG can respond when public officials make misstatements about guidance they have received, which is noted in your 2025 draft legislative agenda. This is a step forward, though we strongly prefer a law requiring informal advisory opinions to senior officials be published so there is no doubt about what is permitted. 

Recommended Changes to NY’s Lobbying, Ethics, and Election Laws

While COELIG has drafted a number of worthwhile legislative proposals, we encourage you to get behind some bills already introduced by the Legislature, including those listed below.

Article 1-a of the Legislative Law – Lobbying

1. Reporting of position on lobby reports – We again urge COELIG to support legislation making lobbying reporting more specific, including whether lobbying activity supports or opposes a bill, budget measure, or other government action. In your draft 2025 legislative agenda, you deferred consideration until the Commission had more information about how this works in other states. To help this along, we have compiled information about other representative states.
   • Idaho requires reporting of information about the items within appropriation bills being lobbied on. (See their Lobbyist Manual and Chapter 66 of Title 67 of the Idaho Statutes).
   • Montana requires reporting of whether the lobbying activity was in support, opposition, or modification of official actions. (See 44.12.102 of the Administrative Rules of Montana regarding reportable activities and Montana’s Registry of Lobbying Activities, selecting “View All Lobbyists”)
   • Colorado requires reporting of whether such lobbyist clients are supporting, opposing, amending, or monitoring the legislation. (See Part 3 of Colorado’s “Sunshine Law” as well as the Colorado Online Lobbyist Search portal.)
   • Nebraska requires lobbyists to show on their statement of activity support or opposition to legislation (See Chapter 6, Rules and Regulations for Lobbying of Title 4, Nebraska Accountability and Disclosure Commission and the Nebraska State Legislature’s Website).
   • Wisconsin allows lobbyists the option to report their position on legislation, and also upload “supporting documentation” such as memos of support. (See their Lobbying Users Guide and lobbying portal.)

Reinvent Albany recommends the following based on other states’ best practices on disclosing lobbying pro/con positions:

• • Use these categories for simplicity and clarity: “Support,” “support with proposed amendments,” “oppose,” and “oppose absent proposed amendments.”
    
    
  • Do NOT use: “neutral,” “monitoring,” or “no position.” We note that simply keeping an eye on a bill is not lobbying or a reportable activity. See the Appendix for our draft bill language; we welcome COELIG’s thoughts about this proposal.

2. Consider requiring lobbyists and/or lobbying clients to report payments made to community groups in an attempt to influence that group’s position on a government action – An emerging issue that has been covered by The City are payments being made by casino lobbyists to local community groups who would otherwise be speaking out against casinos at public hearings, with the media, or to local elected officials. We understand that this activity fits in the gray area of lobbying because the groups and individuals being paid may not be engaging in direct lobbying. We ask COELIG to consider what new reporting might be appropriate in this area, or to clarify what is already required to be reported, but not commonly understood to be reportable expenses or activity. 

3. Disclose lobbying on nominations – We support  S7883 (Gianaris) / A8618 (McDonald), which would require reporting of lobbying on nominations subject to Senate confirmation. The bill was amended in 2024 to no longer be retroactive following a veto from Governor Hochul in 2023. 

4. Require lobbyists to report political contributions and fundraising activity (NYC model) – We appreciate that COELIG considered S2130 (Krueger) / A1391 (Aubry) and its importance for transparency, though you deferred the item on your draft legislative agenda. We would note that one aspect of the NYS campaign finance system has dramatically changed since we initially recommended this proposal: Starting in 2024, lobbyists’ contributions are not eligible under the new public matching system. Because of this new requirement, we believe lobbyists’ contributions should be subject to greater transparency.

5. Lessening the filing burden for smaller filers – Lastly, we continue to support permitting filers who spend between $5-10K  on lobbying each year to report only semi-annually, rather than bimonthly (authorized in NYC, but not currently in place under the City Clerk). This would ease the administrative burdens for both small filers and COELIG. 

Section 73-A of the Public Officers Law – Financial Disclosure Statements 

We appreciate COELIG’s support for posting the financial disclosure statements of candidates for office, as well as electronic filing of all disclosure statements. We have issued memos of support for COELIG’s bills to require electronic filing, and support additional bills to improve public access to disclosure statements:

1. A1560 (McDonald) / S3544 (Breslin) – Requires electronic filing of disclosure statements for legislators and legislative candidates 
2. A1609 (McDonald) / S2833 (Breslin) – Requires legislators and candidates for legislature to post financial disclosures statements on campaign websites 
3. A2507 (Paulin) / S3574 (Skoufis) – Requires disclosure statements from candidates for statewide office or the legislature be posted on COELIG’s website
4. S3507 (Skoufis) – Requires members of REDCs to file disclosure statements 
5. S1883 (Skoufis) – Requires members of REDCs to file disclosure statements, and subjects them to Freedom of Information and Open Meetings Laws. 

Section 74 of the Public Officers Law – The NYS Code of Ethics

We appreciate that COELIG has continued to propose bills related to accessorial liability, as well as adding penalties to more sections of the NYS Code of Ethics. We are glad to see COELIG supports adding sexual harassment to the NYS Code of Ethics. However, we ask COELIG to support S7137-A/A9279 because it includes both sexual harassment and discrimination as ethics violations and is already supported by legislators and advocates.

1. S7137-A (Gounardes) / A9279 (Kelles) – Amends the NYS Code of Ethics to explicitly prohibit harassment and discrimination. This is the approach taken in the rules of ethics for lawyers, which makes discriminatory conduct a ground for disbarment. The legislation also requires those in supervisory positions to take action against acts of discrimination and harassment. We understand that inclusion of discrimination may drive more complaints to COELIG (sexual harassment has already been established as an ethical violation/abuse of power in prior enforcement actions), and accordingly support increased resources for COELIG.

Open Meetings Law

We agree with COELIG that the current Open Meetings Law provisions for remote participation can make it difficult for public officials to participate in meetings because a quorum of members must be present in a publicly accessible, physical location.

That’s why we and 30 other groups support legislation that would change the quorum threshold for all non-elected public bodies – for all meetings, not just committee meetings: A10266 (Simone) / (Pending Senate introduction by Senator May ). This bill would require that the presiding officer – or another designated member – be present in a physical location, while allowing other members of the body to participate remotely. 

COELIG’s proposal would set a standard that is different for “committee meetings of advisory-only bodies” rather than all boards and commissions. While we share the goal of making it easier for public officials to participate remotely in meetings, we strongly prefer to have the same rules for advisory bodies given the important role they play in the deliberative process for setting state policy. 

Commission Budget

Lastly, we continue to support independent budgeting for all enforcement bodies. There are a number of models, including one used for the New York City Independent Budget Office which pegs its budget to the Office of Management and Budget. Your colleagues at the NYC Conflicts of Interest Board have long proposed their own independent budgeting process. We encourage COELIG to draft its own proposal.

We have pushed the Commission to do more investigations, increase outreach to state employees, and build a culture of state employees actively reporting misconduct. We know this takes sustained funding and adequate staffing. COELIG is currently funded at $8,066,000 for FY 2025 – allowing 68 full-time equivalent staff members – past budget increases have been modest given its expanded training mandate.

We think COELIG needs substantially more funding from the Governor and the Legislature to fulfill its expansive mission, which includes managing enormous lobbying and financial disclosure processes, ruling on complex policy issues, and enforcing ethics laws and regulations.   

We also note that the uncertainty created by former Governor Cuomo’s lawsuit is severely affecting the ability of COELIG to move investigations forward and seek justice for victims of abuse of power, as well as hire staff, who understandably want the certainty of knowing that their agency will still exist in a few months. Given this challenge, we continue to support an independent evaluation of the technological, staffing and other funding needs of COELIG. This evaluation could be conducted by a management consultant. The NYS Department of Motor Vehicles did something similar when they had a management and information technology (IT) consultant redesign their workflow and internal and public-facing IT. 

Thank you for your consideration. 

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